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Thursday, October 01, 2009

Not much Gov 2.0 detail in Tasmania's RTI Exposure Draft

Submissions closed today on the Tasmanian Exposure Draft Right to Information Bill 2009, to replace the Freedom of Information Act, and the Personal Information Protection Amendment Bill 2009. I didn't manage a submission, but make these couple of comments.

While there are some positives, the RTI Bill is not all you hope for in a modern, plain - English, access to government information act. The drafting for a start strikes as "old-style" - even "impecunious" gets a run in Section 17 - but that's neither here nor there in the broad scheme of things.

More importantly, while the Department of Justice Review team's webpage states the Bill proposes (among other things) to "mandate greater proactive release of information by the Government", the Exposure Draft does nothing of the sort. It does not require the proactive publication of any information, simply authorising agencies to release information by way of "routine" (in the public interest), "active" (in response to requests outside the Act) or "required" (by another act) disclosures, all to be preferred to the last option of "assessed" disclosure- release in response to a formal application under the Act. No further requirements are imposed regarding proactive disclosure. The Ombudsman who has specified powers may (Section 50) issue guidelines relating to disclosure under the four specified types. But if any guidelines are issued there is nothing in the Exposure Draft that requires an agency to have regard to or comply with them. There is a general power to make regulations for the purposes of the Act (Section 55) but under the Bill as it stands, each agency will decide what if any information should be proactively released. There is no mention of the Internet in 85 pages.

A couple of other points.

The application fee for assessed disclosure applications for the "impecunious" and a Member of Parliament acting in connection with official duties can be waived (Section 17) but no-one else who might be seeking information for broad public purposes gets a mention. Neither is there any mention of processing charges, so maybe there's to be none?

Grounds of exemption are to a large extent Australian standard, and for those subject to a public interest test, some relevant considerations for and against disclosure are listed (Schedule 1) to be taken into account in deciding whether disclosure would not be contrary to the public interest. A couple are unusual and may be unique- (t) whether the applicant is resident in Australia; and (u) whether the information is wrong or inaccurate.

Schedule 3 includes matters relevant to refusing an application on grounds of substantial and unreasonable diversion of resources. Regular users of the Act for example journalists, interest groups and politicians might be a little wary about what could constitute "applications of the same kind" and "similar information" as in:
(g) the extent to which the applicant is a repeat applicant to the public authority in respect of applications of the same kind, or a repeat applicant across government in respect of applications of the same kind, and the extent to which the present application might have been adequately met by those previous applications; and (j) the number and volume of assessed disclosures of information to the applicant about similar information in the 12-month period immediately prior to the present application.
There is no Information Commissioner as such and the Ombudsman (Section 48) has various powers some of which need beefing up from the discretionary "may", and as mentioned above, given some clout, although in one respect - the power to direct an agency to implement the Ombudsman's decision after considering a review application - the Tasmanian Ombudsman is a step ahead of what the information commissioners can deliver under Queensland, NSW or proposed Federal legislation.

Other good elements: the Act (Section 8) covers information related to performance, evaluation or progress of work provided to a public authority by a private organisation that is funded by or performs a role of that public authority unless the information is exempt; the shift from "documents' to "information" and clear search requirements for electronic information (Section 10); the inclusion of an offence for "unduly" influencing a decision (although there appears to be a drafting error in Section 51 which seems to apply to internal review decisions, but not not others).

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