27 November 2009
On 26 November 2009, the Federal Government introduced into Parliament the Information Commissioner Bill 2009 and the Freedom of Information Amendment (Reform) Bill 2009, and moved one step closer to fully implementing its promised FOI reforms. The Federal Government's 2007 election commitments on FOI law proposed the most significant changes to the Federal FOI system since its establishment. Those commitments were broadly intended to effect a cultural shift in FOI practice, by promoting a pro-disclosure environment and scrutiny of Government actions.
Broadly speaking, the reforms will create the Office of Information Commissioner and are designed to enhance the public's right of access to documents under the FOI Act, by limiting access only where a strong public interest favours non-disclosure. The Bill also promotes proactive publication of information by Government Agencies, through the Information Publication Scheme, and aims to improve the process for making FOI requests.
On 24 March 2009, Senator Faulkner released an Exposure Draft of the Information Commissioner Bill and the Freedom of Information Amendment (Reform) Bill. Forty-five submissions were made in response. We considered the nature of the reforms proposed in the Exposure Draft in the April edition of Information Insights.
Twenty-seven changes have now been made to the Exposure Draft. We have summarised the most important of these below. More detailed information on the Information Commissioner Bill 2009 and the Freedom of Information Amendment (Reform) Bill 2009 is available on the Department of Prime Minister and Cabinet's website, and the attached summary of the new Bills.
Summary of key changes
Delay in commencement of FOI reforms: Commencement of the Information Commissioner Bill has been pushed back from 1 January 2010 until a date fixed by Proclamation. Most provisions of the FOI Reform Bill will commence immediately after the commencement of the Information Commissioner Bill.
Information Publication Scheme: The new FOI Reform Bill introduces an Information Publication Scheme that, broadly speaking, requires agencies to publish a range of information about the agency and its activities, including documents to which the agency "routinely" gives access in response to FOI requests. Further, agencies were required to make available to the public information that agencies have released in response to FOI applications. The new FOI Reform Bill amends the Exposure Draft to make clear that these requirements do not apply to information containing personal information and business affairs information, if it would be "unreasonable" to publish that information (see sections 8(2)(g)(i)-(iii); 11C(1)).
New requirement to review FOI reform: The new FOI Reform Bill requires the Government to undertake a review of the FOI Act's operation two years after commencement of these reform measures (see section 93B). This requirement was not present in the Exposure Draft and gives statutory effect to the Government's previous commitment to a review.
New timeframes for meeting access requests: The new FOI Reform Bill permits an agency or Minister to extend the period to comply with an access request by up to 30 days. Such an extension can only be made with the agreement of the applicant (see section 15AA). The agency or Minister must give notice, in writing, of such an agreement to the Information Commissioner as soon as practicable after the agreement is reached. This change is designed to allow better self-management of requests, as long as the applicant's consent is obtained. The provision in the Exposure Draft for an agency or Minister to apply to the Information Commissioner for an extension of time, where an FOI request is complex or voluminous, is retained (s 15AB). In such circumstances, the Information Commissioner may extent the time period to comply with the request for 30 days, or any other period the Commissioner considers appropriate.
Dealing with onerous applications: The Exposure Draft allowed an agency or Minister to refuse to deal with an FOI request where that request would substantially and unreasonably divert the resources of the agency or Minister from its operations. In making that assessment, the agency or Minister could treat two or more requests as a single request, if the requests related to the same documents or document. The FOI Reform Bill expands this provision, by allowing two or more requests to be treated as one, if they seek access to documents where the section of those documents is substantially the same (see section 24(2)).
Conditionally exempt documents - Public interest test: The proposed FOI reforms established a "conditionally exempt" category of documents. Conditionally exempt documents are only exempt if their disclosure would be contrary to the public interest. The Exposure Draft included a provision that, when assessing whether the public interest favours non-disclosure of conditionally exempt documents, it is irrelevant whether an applicant may misinterpret or misunderstand the document. The new FOI Reform Bill amends this, and now provides that it is irrelevant whether any person, including the applicant, may misinterpret or misunderstand the document (see section 11B(4)).
Exemptions - Trade secrets and the public interest test: The Exposure Draft provided that documents which disclosed trade secrets and/or other information of commercial value that could be expected to be destroyed or diminished if disclosed, were conditionally exempt. Access was therefore granted unless contrary to the public interest. The new FOI Reform Bill amends the Exposure Draft, and provides that trade secrets and information of this kind is fully exempt from disclosure, and hence not subject to the public interest test (see section 47).
Exemptions - Legal professional privilege: The new FOI Reform Bill amends section 42 of the FOI Act, to explicitly state that the exemption for documents subject to legal professional privilege does not apply in circumstances where privilege over that document has been waived.
FOI decisions - Internal and external review: The Exposure Draft did not permit FOI applicants to seek external review from the Information Commissioner of FOI decisions without internal review having first been sought. Sections 54L and 54M of the new FOI Reform Bill now allow applicants to apply directly to the Information Commissioner for review. Consequently, internal review is now no longer a pre-requisite to external review by the Commissioner.
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