NSW Deputy Ombudsman tells home truths to lawyers

In a speech "FOI - the Need for Review" (CWS.pdf ) to government lawyers last week, Deputy NSW Ombudsman Chris Wheeler highlighted areas of concern about Freedom of Information:

• how the Act is being implemented by agencies
• the need for a review of the Act, including the need to address the conflict of interests inherent in FOI legislation and some options for dealing with repeat applications, and
• the Ombudman's experience in dealing with lawyers acting for agencies in relation to FOI.

The NSW rate of refusal of access compares unfavourably with other jurisdictions and apparently there has been a large increase in agency requests for additional payment of charges prior to processing applications.

Given recent commitments by the Queensland and Victorian governments to review FOI, major amendments proposed in WA, and the federal government decision to (again, 11 years after receiving 106 recommendations for change that have not been acted upon) refer FOI to the Australian Law Reform Commission, the Ombudsman has raised (again) with the Premier the need for review in NSW. No formal review has been undertaken since the Act commenced in 1989.

The Deputy Ombudsman comments on the tendency of lawyers advising government agencies to pay scant regard to the objects of the Act, and to slip into 'deny and defend' mode to justify refusal of access decisions based on a literal interpretation of exemption provisions.