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Wednesday, May 06, 2009

NSW FOI reforms- close to gold star

The draft bills and other documents concerning the proposed NSW Open Government Information Act will be available online later today.

The three media reports on the proposed changes this morning are here.

There is a lot of fine print to be read closely but my initial reading indicates a lot to like in this reform package. For plain English it leaves some of the other efforts-notably Canberra's draft bill- for dead.It manages to set out the new sheme in 64 pages (Canberra's amendments only take 130 and Queensland's draft bill runs to 178 ).

The scheme itself follows what is emerging as an Australian standard- a clear statement of objects based on the concept of responsible and representative government that is" open, accountable, fair, and effective"; emphasis on proactive disclosure; a simplified set of refusal reasons, some eg cabinet documents absolute, most with a public interest test and the presumption in favour of disclosure unless an overriding public interest against; a codified list of other provisions in acts that override this act; an independent information commissioner to provide leadership on achieving the objects, deal with complaints and review etc.

Some completely unnecessary reasons to refuse access go- one that relates to anything the World Masters games organisers say is confidential; another more significant improvement is removal of an over-the-top provision inserted at the height of terrorism paranoia that no other jurisdiction in the country felt necessary.While legal privilege remains, an agency is required to give consideration to waiver- a positive first anywhere in the country.

There is a welcome clear statement that decisions on access to agency documents are not subject to direction or control by ministers (Clause 9), and offence provisions (111-115) for doing something a person knows is contrary to the Act, directing unlawful action, influencing a decision, knowingly misleading a person in carrying out functions, or concealing or destroying information.

Fees and charges are to remain at the same level set 20 years ago, including 20 hours free for your own information, and a reduction is to be available where release would be of special benefit to the public generally. An agency can also waive fees and charges entirely.

Helpfully the Companion Guide lists the Ombudsman's 88 recommendations, and the Government response- in contrast, try working out which recommendations the Federal Government accepted from the 1995 ALRC "Open Government" Report. Unhelpfully it doesn't give any explanation for rejecting or sidelining relatively few -notably that the Parliament should be brought within the scope of the act, that it should extend to information held by a contractor carrying out an agency's functions, that the Premier should proactively release information after cabinet meetings, that a confusing aspect of the Local Government Act (S12(6)) should be repealed and that the Information Commissioner should be in the Ombudsman's office. A number of related matters have been deferred or passed back to the NSWLRC pending finalisation of its examination of privacy laws (but NSW Privacy should in my view be folded into the Information Commissioner's office from the start)

Room for improvement-sure. The proactive release requirements aren't detailed sufficiently. We have gone backwards on time limits from 21 days for processing to 20 working days. The review and complaint arrangements are messier than they could be. Some unnecessary exemptions remain such as Executive Council documents - the Federal Government is removing this exemption. Some new ones crop up - the Register of Ministerial Interests held by the Premier is for the first time explicitly out of bounds, etc,etc- there are certain to be others from a closer reading.

Overall this is good stuff, but as always implementation is the key. And a new start-up Information Commission won't be in place for quite a while.

Hopefully the "orphan" status of FOI in NSW is also a thing of the past as a standing committee of parliament is to be charged with oversight, and a statutory review of the legislatrion is required every five years.


  1. Anonymous10:03 am

    I wait in earnest to be able to pore over this draft work.

    I am, however, concerned with your note that "Some unnecessary exemptions remain..."

  2. Anonymous9:20 am

    I'm a bit worried about the way the table in the Guide matches up with the actual draft provisions. For example clause 5(3) in Sch 1 dealing with legal professional privilege appears to provide that a decision not to waive lpp is not reviewable by either the ADT or Ombudsman as it is now. Potentially retrograde, but I challenge you to try to find how this 'reform' is explained in the table...

  3. There are quite a few issues unexplained. I'm still working my way through the bill, so interested in this and any other thoughts you might have.