Improving government accountability through information access:

In April 2008, the NSW Ombudsman initiated an own-motion inquiry into the NSW FOI Act. As part of this inquiry, the Ombudsman released a discussion paper. Following this inquiry, the NSW Ombudsman made a special report, Opening up government: Review of the Freedom of Information Act 1989, Special Report to Parliament, in February 2009, which suggested substantial changes to the freedom of information regime in NSW.

In response to the NSW Ombudsman’s report, the NSW Government has released the Open Government Information Bill 2009 (NSW) (the OGI Bill), the Information Commissioner Bill 2009 (NSW) (the IC Bill) and the Open Government Information (Consequential Amendments and Repeals) Bill 2009 (NSW) (together, the Draft Bills) in May 2009.

Some of the key reforms put forward in the draft bills are:

• inserting a provision at the outset of the OGI Bill to make it clear that there is a general presumption that the disclosure of government information is in the public interest;
• structuring the OGI Bill to make many of the existing FOI exemptions subject to this overarching public interest test;
• including a series of offence provisions to ensure that people do not destroy records, wilfully refuse to comply with FOI requests, or engage in other forms of behaviour that would undermine the effective operation of the legislation;
• creating a new independent Information Commissioner to act as an advocate, champion, advisor, monitor and decision-maker;
• making the review procedures more flexible, enabling applicants to choose between internal reviews, reviews by the Commissioner and Administrative Decisions Tribunal reviews depending on the nature of the case;
• transferring Part 4 (amendment of records containing personal information) to the Privacy and Personal Information Protection Act 1998 (the PPIP Act); and
• encouraging proactive release of information through the creation of a new category of ‘open access information’ including publications guides and disclosure logs.

Overall, PIAC welcomed the draft bills, which PIAC hopes will herald a new era of ‘open government information’. However, PIAC suggested a few areas that needed further consideration and amendment.  In particular, PIAC expressed concern at a proposal that personal factors of the applicant be considered by an agency in determining the public interest test for disclosure of government information. PIAC regards this as contrary to the fundamental ethos of the FOI regime and the spirit of the reforms.  PIAC also submitted that key substantive provisions should be included in the body of the Act, rather than an increasing number of schedules.  PIAC also contended that both Houses of Parliament should be subject to the new Act.