Putting public interest at the heart of FOI:

On 24 March 2009, at Australia’s Right to Know Freedom of Speech Conference, Senator John Faulkner announced the government’s proposed second tranche of reforms to the Freedom of Information Act 1982 (Cth) (the FOI Act).

PIAC welcomes the opportunity to comment on the Freedom of Information Reform Bill and the Information Commissioner Bill 2009. Some of the key reforms put forward in these draft Bills are:

• amendment of the objects provision of the FOI Act to clearly set out the rationale or purpose behind the legislation;
• creation of Information Publication Schemes that would open up significant amounts of government information to the public;
• amendment of the Cabinet exemption so that it applies to documents that were created for the dominant purpose of being submitted to Cabinet;
• introduction of a single public interest test that applies to all ‘conditionally exempt documents’ and including a non-exhaustive list of public interest factors that favour disclosure;
• amendment to consultation requirements in relation to business affairs and personal information that mean that agencies are only required to consult third parties when it appears that the other party may reasonably wish to contend that an exemption applies; and
• creation of a new independent statutory office of the Information Commissioner.

However, in a number of areas, PIAC concludes that the government’s reforms do not go far enough.  For example, while the FOIR Bill repeals some exemptions, it does not trim the excessive number and breadth of existing exemptions and also retains an almost entirely untouched Schedule 2 of the FOI Act.  Furthermore, in some areas, particularly ‘intelligence agency documents’ and certain Department of Defence documents, the draft Bills actually closes down the accessibility of these documents – excluding them entirely from the FOI Act irrespective of their contents.

In addition, PIAC notes that neither of these bills deal with the issues of amending :

(i) duplication and overlap between the privacy and freedom of information legislation in relation to access to and amendment of one’s own personal information; and

(ii) the imposition of processing charges for FOI requests.  The government has indicated that these issues will be dealt with as part of future reviews.  However, PIAC  can see no justification for leaving these aspects out of the current reforms.

PIAC urges the Government to be bold in its reforms to ensure that the promise of freedom of information legislation is finally realised in Australia.