NSW OGI BIll steps into digital age

Those interested in the detail of the NSW Open Government Information Consultation Draft will find the E-Brief prepared by Dr Gareth Griffith of the NSW Parliamentary Library Research Service of interest.

One point that seems to have been missed in media comment and in Griffith's excellent paper is the significant shift from the emphasis in the Freedom of Information Act on access to "documents," to a new obligation under the OGI Bill to publish and provide access to "information." The 1989 NSW FOI Act, like it's Commonwealth counterpart was drafted before the digital age and, while information stored electronically is covered by both, "documents" occupy centre-stage.

The OGI Bill however has the title “An Act to facilitate open access to government information”. The objects in Clause 3 include the words ”proactive release of information” and “enforceable right of access to information”. Access is to be provided to a copy of a record defined as "any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by other means."

Section 23 of the FOI Act-headed "Information stored in computer systems etc"- which imposes an obligation on an agency to create a document using equipment to retrieve information stored in a system, but only when a written document containing requested information is not held, doesn't appear in the new legislation. Instead Clause 50 of the OGI Bill will require an agency to undertake “reasonable searches as may be necessary” to locate requested information using any resources reasonably available to facilitate the retrieval of information stored electronically.” The only limit on the search of data systems is where this would involve substantial and unreasonable diversion of resources.There will be no initial obligation on an agency to search an electronic back-up system for relevant information. However it will be obliged to do so if a record has been lost through destruction or transfer or otherwise dealt with in contravention of the State Records Act or contrary to the agency's record management procedures.

Broader recognition of the realities of the digital age in access to government information laws is overdue by about 15 years. NSW (and to a degree Queensland, although the word "document" still features prominently in the Right to Information Bill introduced into Parliament) has moved in the right direction, while stopping short of reform along the lines of the possibilities envisioned in this presentation by Rick Snell on FOI 2.0(Pdf). In contrast, the Commonwealth FOI Reform Exposure Draft leaves "documents" and quaint provisions in the Act about the use of computers where they were twenty odd years ago.