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Friday, April 03, 2009

FOI for Boffins (Mark 2)-warning:not for the faint-hearted

You could write a book on the subject- a few will- but given the complexity involved in working through the Exposure Draft of the Federal Government's Freedom of Information Amendment (Reform) Bill, for my own purposes and perhaps of assistance to you, the following is a summary of some of the more significant aspects of what would change and stay the same.I won't repeat previous comments about the overall package, the pro-active disclosure provisions or the public interest provisions.

I presume Minister Faulkner's department would have had to put something like this together to brief him and the cabinet on the proposals, particularly the exemptions, in addition to the Companion Guide which doesn't quite do it. I may have missed something in the fine print or got it wrong-in that case let me know. I've stopped short of comment (in most cases) at this stage.

The Act as it stands is here. The documents released for consultation are here.
The Exposure Draft Bill here - PDF 543KB. Hope this doesn't stretch the relationship too far.Good luck

Scope of the Act
No change except for extension of the Act to documents held by a contracted service provider or subcontractor providing services to an agency and the agency would hold the document if it performed the service in its own right. An agency must take contractual measures to ensure it receives a document of this kind.(Schedule 6 in the Draft)

Application fees abolished and free processing time of one hour for all and five hours for journalists (bloggers?) and non-profits. Nothing in the Exposure Draft. A Draft regulation to be released shortly.

New powers for the declaration by the Information Commissioner of a person to be a vexatious applicant. Requires a finding of "abuse of process"(as defined) or a "manifestly unreasonable" request or application.(89K-89N in the Draft)

Exemptions with no public interest test
National security, defence, international relations
Section 33. No change. A new subsection in Section 4(11 in the Draft) of the Act states to"avoid doubt" Section 33 covers information communicated pursuant to any treaty or formal instrument on the reciprocal protection of classified information with a foreign government or international organisation.

Cabinet documents.
New section 34. Main changes are that a document prepared for submission to cabinet (exempt at present) will only be exempt where it has been or is proposed to be submitted and was brought into existence for the dominant purpose of submission for consideration by the cabinet; new subsection exempts a document brought into existence for the dominant purpose of briefing a Minister on such a document. Other current provisions in the exemption remain.

Executive Council
Section 35. Repealed.

Law enforcement
Section 37. No change.

Secrecy provisions in other acts
Section 38. No change to the exemption or to Schedule 3 that lists secrecy provisions in other acts prohibit disclosure.

Legal professional privilege.
Section 42. No change.

Material obtained in confidence.
Section 45. No change other than consequential amendments to 45(2).

Contempt of Parliament/contempt of court.
Section 46. No change

Companies and securities legislation.
Section 47. Repealed

Electoral rolls
Section 47A. No change.

Public interest conditional exemptions
The wording of each current exemption that includes a public interest provision is to be amended, to link back to the standard "must disclose unless at the time disclosure would on balance be contrary to the public interest" test in new Section 11A. Other than this:
Commonwealth-State relations
Old Section 33A repealed and replaced (47B in the draft). No substantive change.

Deliberative process.
This heading replaces "internal working documents". Old Section 36 replaced (47C). No substantive change.

Financial or property interests of the Commonwealth
Old Section 39 repealed and replaced (47D). No substantive change.

Certain operations of agencies
Old Section 40 repealed and replaced (47E). Only change is removal of subsection(e)- disclosure could be expected to have a substantial adverse effect on the conduct by or on behalf of the Commonwealth or an agency of industrial relations.

Personal privacy.
Old Section 41 repealed and replaced (47F).The exemption itself is unchanged:a document is is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
However a new subsection lists matters that a decision-maker must take into account including whether the information is well known or available from publicly accessible sources, and "any other matters" considered relevant.Perhaps this is meant to allow a step back from "disclosure to the world" in appropriate cases (as per the Marke decision in Victoria) although Section 11(2) remains: the right of access under the Act is not affected by any reasons the person gives for seeking access or the decision maker's belief as to what are his or her reasons for seeking access.
The other new twist is that in addition to the requirement to consider unreasonability (which has always required consideration of the public interest) the exemption provision now requires disclosure unless on balance contrary to the public interest.

Business documents
Old Section 43 repealed and replaced (47G). No substantive change in the exemption. However all three separate parts of the exemption will also now require consideration of whether disclosure is on balance contrary to the public interest. There is currently no additional test like this for a trade secret, or information that has a commercial value that would be destroyed or diminished by disclosure. The broader exemption for information concerning business,professional commercial or financial affairs continues to require a finding that disclosure would have an unreasonable affect or prejudice the future supply of that sort of information, plus new consideration of whether disclosure on balance would be contrary to the public interest.

Old Section 43A repealed and replaced (47J). No substantive change.

The economy
Old Section 44 repealed .Current 1(a) not replaced: exempt where disclosure would, or could reasonably be expected to, have a substantial adverse effect on the ability of the Government of the Commonwealth to manage the economy of Australia.
The new section largely replicates the current 44(2) with the addition of an exemption where disclosure would have an unreasonable adverse effect on Australia's economy by "influencing a decision of a person or entity".

Exemption of certain persons and bodies
Section 7A(2)-intelligence agencies- repealed and replaced (20). No substantive change except to exempt a summary of or an extract from an intelligence agency document. No change to agencies listed in Schedule 3 that are exempt in respect of all or some functions except the addition of Department of Defence in relation to documents in respect of operational intelligence, and "special access programs under which a foreign government provides restricted access to technologies." And removal of Federal Airports Corporation.

Consultation Requirements
Sections 26A, 27, 27A repealed and replaced (18). No substantive change.

Review Processes and other bits and pieces
Another day.....If you got this far you know we both need a break.


  1. Anonymous9:03 am

    thanks Peter, clear and concise.
    Now to see if a change in the legislation really does lead to a change in the culture.
    anon in canberra

  2. Thanks for this Peter, it'll help me as I trawl through the exposure draft in preparation for the APC's sub.