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Tuesday, May 05, 2009

Premier Rees tables Freedom of Information reform proposals

NSW Premier Nathan Rees has released to the media today the draft Open Government Information Bill and other documents related to replacement of the Freedom of Information Act.They are not on the web as yet, but the text of the Premier's media release dated tomorrow is as follows, I'll have something to say when I see the detail. A lot of this sounds good at first glance. But another reference to the NSW Law Reform Commission on privacy, meanwhile leaving Privacy NSW, from the sound of this, to stand alone-please!!:

"Premier Nathan Rees has today released exposure draft legislation to deliver fundamental reform of FOI laws in New South Wales. Mr Rees said that the FOI Act had not been updated in 20 years, and it is time for a complete overhaul. “This new legislation builds on our commitment to deliver greater openness and transparency,” Mr Rees said. The Premier has released three Bills for public comment.

• The Open Government Information Bill replaces the FOI Act. It promotes greater pro-active disclosure of information by Government. It also confers a legal right for any member of the public to apply for access to information held by the NSW Government, including local councils.

• The Information Commissioner Bill establishes a new, independent office of Information Commissioner. The new office will be responsible for championing the new legislation and ensuring all Government agencies comply with it.

• The Open Government Information (Consequential Amendments and Repeals) Act amends and consolidates other related legislation

“These reforms underline the presumption that Government information should be accessible to the public,” Mr Rees said. “Agencies should release information without having to wait for someone to make a formal application for it.” Mr Rees said that the reforms were guided by the review of the FOI Act published by the Ombudsman in February this year. “They also take into account proposed reforms that are taking place in Queensland and the Commonwealth,” Mr Rees said.

The legislation retains protections for information where there is an overriding public interest against disclosure. This includes information which is private, personal information about individual citizens and commercially sensitive information of businesses. The confidentiality of Cabinet, which is a cornerstone of the Westminster system of democracy, will also be maintained.

The exposure draft bills are available on the Department of Premier and Cabinet’s website. Public submissions are requested by 3 June 2009.

FOI Reform
Last year, the Premier stated in Parliament: “I intend to create a new Freedom of Information Act in New South Wales early next year….”
Key changes
• Establishment of the Information Commissioner: The Bill establishes the Information Commissioner with the same level of independence as the Ombudsman and the same powers that the Ombudsman’s Office currently has in relation to FOI.
• A single ‘Public Interest’ touchstone: The draft legislation provides a clear requirement that an agency should release information unless there is an overriding public interest against disclosure.
• Review: Decisions concerning access to documents held in Minister’s offices, which are currently only subject to review determinations by the Administrative Decision Tribunal, will also become subject to review recommendations by the Information Commissioner.
• Streamlined rights of reviews, with applicants to have the option of by-passing Internal Review and applying for a review directly to the Information Commissioner or the ADT
• Abolition of Ministerial certificates
• Offences: There are no offences in the current FOI Act. In accordance with the Ombudsman’s recommendations the draft legislation includes new offences, including for knowingly acting in contravention of the Act. Proceedings for offences may be brought by the DPP or another agency authorised by the Attorney-General.
• State-owned corporations and local authorities will be made subject to the requirements that are imposed on all other agencies to pro-actively disclosure government contracts (other than commercial-in-confidence provisions), except that SOCs will not be required to disclose the details of any contract entered into in the course of their competitive market activities.
• Legally privileged documents: where an application is made for documents which are legally privileged, the legislation will direct agencies to consider waiving the privilege and releasing the documents. Decisions will be reviewable by the IC and the ADT.
• Deferral of access will be limited to a maximum period of 12 months (consistent with agencies’ annual reporting cycles). If the document is not published within 12 months, the applicant is entitled to apply again for the document and the agency cannot defer access again.
• Realistic time frames for dealing with applications: The Bill allows agencies up to four weeks to deal with an application, but provides that if an application is not dealt with in that time the applicant is entitled to a full refund.
• The draft legislation continues to protect privacy by ensuring that personal information held by Government can be withheld on public interest grounds.
• A reference will be given to the NSW Law Reform Commission to examine and recommend policies for the handling of access applications for personal information.
• This will inform the development of regulations and guidelines under the OGI Bill.


  1. Anonymous5:35 pm

    Oh, I need details!

    Just one month for public submissions? :-(

  2. Anonymous5:38 pm

    The latest news on the Department of Premier and Cabinet website is 15 January 2009. WTF?

  3. Anonymous10:43 am

    Yes a month. How long do you need????? The leg isn't that complicated.

  4. Anonymous5:49 pm

    WTF? Under this Act, you can't get information about the national electricity market? That's kind of pertinent to saving our arses from climate change through a rapid transition to renewables, I would have thought.

    Among the agencies excluded are:

    Any body or office that exercises functions under the National Electricity (NSW) Law (including functions under the National Electricity Code referred to in that Law) on behalf of National Electricity Market Management Company Limited (ACN 072 010 327) (NEMMCO) or any successor to NEMMCO-those functions.