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Tuesday, February 09, 2010

FOI review rights and who carries the can

The issue in the Federal Government's  Freedom of Information Reform Bill that Australia's Right to Know ran strongly with last week and was picked up elsewhere by the media and in the Senate committee hearing on Friday, revolves around the right to seek merits review from the Administrative Appeals Tribunal, and who should carry the onus if the matter gets that far.

 While it is an important issue, it is hardly the most important, and suggestions in Crikey it would "fatally undermine the move to more open government" seem way over the top. In the year to 30 June 2009 there were 27560 applications under the FOI Act but only 139 applications for review by the Tribunal. With the new system providing, as the Explanatory Memorandum states, "a simple expedient and cost efficient system for external merits review" by the Information Commissioner, everyone will be hoping even fewer cases warrant AAT review, once the Bill becomes law. And there are plenty of issues apart from this one in the Bill that call out for another look.

I'm concerned also about a related matter- the  potential delay tactics if an agency or Minister has a right to further merits review of an Information Commissioner decision.This post looks at whether there should be any such right of review, and at the onus issues.The best approach in my view would be for an agency only to have a right to seek review of a Commissioner decision on the basis of an error in law; and as preserving an applicant right would be a means of ensuring the Commissioner stays on the right path, and the cost of an AAT application ($682) will always sort the serious applicant with a genuine issue from the frivolous, in the event of such an application, the agency or Minister should, as now, carry the onus.

For brave hearts an explanation follows.
Since the commencement of the Act in 1982, the onus in AAT reviews to establish that a decision was justified has been with the agency or Minister who made the decision. The FOI Reform Bill preserves these rights but establishes a mandatory preliminary requirement to seek review by the Information Commissioner (proposed Section 54L).

In conducting a review the Information Commissioner will be authorised to proceed in whatever way considered appropriate ( 55(2)), and use as little formality and technicality as possible ( 55(4)). It is intended that most applications will be determined on the papers, without a hearing (55(1)). The agency or Minister that made the reviewable decision has the onus of establishing the decision is justified or that the Commissioner should give a decision adverse to the applicant (Section 55D).  The Commissioner has powers to compel production of disputed documents (55R) with special procedures for cabinet and national security documents(55U), require persons to appear (55W) and give evidence under oath (55X). The Commissioner has the same powers as the original decision maker (Section 55(2) except no power to require disclosure of a document found to be exempt (55L).The Commissioner must give and publish a statement of reasons for the decision (55(4) and(8)) and the agency or Minister must comply (55N) with any decision, that is to disclose documents not found to be exempt.

So all this sounds pretty thorough, and the applicant will end up with a written notice of the Commissioner's reasons for decision. But the whole process can be repeated- proposed Section 60 gives the applicant, third party, agency or Minister a right to seek further external merits review by application to the AAT where they contend the decision of the Commissioner was wrong. The right also exists where the Commissioner decides not to undertake a review on the basis that it is desireable for the Tribunal to undertake review at first instance. Interestingly a decision by the Commissioner not to review on grounds the application is frivolous, vexatious, misconceived,lacking in substance or not made in good faith (54W(a)) is not subject to AAT review (57A)  The Information Commissioner will not defend his or her decision and is not a party to the proceedings. It's not clear to me whether the Commissioner's statement of reasons can be tendered in evidence, and would form part of the information before the Tribunal.

The issue of contention arises from proposed Section 61 -  the party seeking review- and that means an FOI applicant who wants to box on, as well as an agency or Minister - has the onus of establishing that the Commissioner did not make the correct decision. In my view this opportunity for an agency or Minister to seek review is an equally important matter for concern.

The Tribunal has the same powers as the Commissioner - it can only decide the status of the documents but not require disclosure of a document found to be exempt. In this respect Tribunal powers are less than those that were available to the original decision maker who has a discretion to release a document that comes within one or more of the exemption provisions. As the Law Council of Australia submitted and Mark Robinson argued on Friday, this limitation on the Tribunal is unique in that in all other areas of jurisdiction it enjoys the same powers as the original decision maker.  The Council urged the Committtee to recommend this anomaly be rectified. If the Tribunal had such powers, powers not held by the Information Commissioner, it would boost the argument for a right of AAT review by the applicant.

However precedent elsewhere in Australia, and the experience of at least one Commissioner suggests that the possibility of a second external merits review could lead to delay tactics to frustrate an applicant who has had the benefit of an Information Commissioner decision.

Under the Queensland Right to Information Act 2009 - (PDF, 1.04MB) the Information Commissioner has powers to conduct external merits review. The agency or Minister who made the decision under review has the onus of establishing that the decision was justified or that the information commissioner should give a decision adverse to the applicant (Section 87). However there is no further merits review available.  A decision of the Commissioner can only be appealed to the Queensland Civil and Administrative Tribunal on a question of law (Section 119).  There is a separate right to judicial review by the Supreme Court in some circumstances (Section 20 Judicial Review Act).  The onus in either case would be with the appellant.
Similarly in Western Australia the Freedom of Information Act  confers the merits review function on the Information  Commissioner, to determine whether the documents are exempt or not exempt, with no override discretion.  There is a right to appeal on a question of law to the Supreme Court (Section 85 FOI Act). The onus in any such appeal would be with the appellant. 

The then Acting WA Information Commissioner in this submission (PDF) to the Department of Prime Minister and Cabinet on the Exposure  Draft Bill in May last year sounded this warning about multiple review processes:
"It is also proposed to retain a further right of merits review to the AAT for both applicants and agencies. While there are some advantages in retaining an extra level of external review before the AAT which, as a generalist tribunal has by its nature a broad membership and depth of experience, retention of this additional level of merits review risks defeating two primary objectives of FOI – to ensure that FOI decisions are made quickly; and to promote a process that is as informal and cheap as possible. These are express objects of the FOI Bill reflected in proposed clause 3(4) – to facilitate and promote public access to information,
promptly and at the lowest reasonable cost.

Our experience has been that some third parties and agencies will take advantage of availablereview processes as strategic opportunities to delay an FOI decision, particularly where there are commercial issues or potentially embarrassing documents at stake. Adding a new level of review, particularly one that is adversarial in nature, and affording both agencies and complainants an avenue to pursue that option, will result in up to five levels of FOI decision making – two at agency level; one before the Information Commissioner; one before the AAT; and on questions of law before the Federal Court. This appears excessive and open to misuse. It could have the unintended effect of encouraging agencies to more vigorously contest some FOI applications and to deny access and defend their positions. This could occur despite allowing the Commissioner to decline areview request in some cases."
There was more. I think he was right. I made the same point in a couple of sentences in my submission to the Senate Committee.
 NSW, in the Government Information (Public Access) Act (not commenced) appears to be the only jurisdiction with something similar but still different to the Commonwealth proposals. An aggrieved person will be able to seek review by the Infomation Commissioner (Section 89) and/or the Administrative Decisions Tribunal (Section 100).  However in each case the onus rests on the agency or Minister to establish the decision was justified (Sections 97 and 105). Regardless of who initiates review by the Tribunal, the agency or Minister carries the can. (Added 10 February: The two avenues for merits review and the fact that either or both  may be pursued arise from a unique aspect of the NSW Information Commissioner scheme compared to other Australian models actual or proposed - the Commissioner will only have power to make a recommendation to an agency or Minister, not to make a finding that would compel disclosure, similar to powers of an Ombudsman.The Tribunal has  and will continue to have power to order disclosure where it finds this would not be contrary to the public interest.)

All in all the best approach in my view would be for an agency or Minister only to have a right to seek review of a Commissioner decision on the basis of an error in law; and as preserving  an applicant right would be a means of ensuring the Commissioner stays on the right path, and the cost of an AAT application ($682) will always sort the serious applicant with a genuine issue from the frivolous, in the event of such an application, the agency or Minister should, as now, carry the onus. 

If an agency is to have another right to full merits review, the suggestion in my submission to the Senate Committee should be considered: that someone - perhaps the Minister responsible - should be required to certify that the cost and delay in finalisation of the matter is justified by the importance of the issues involved.

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