Section 38 to stay
Of particular interest is the change of heart by the Commission on the preliminary view expressed in its Discussion Paper, Review of Secrecy Laws (DP 74), that section 38 of the FOI act which currently provides exemption for information of the kind referred to in specified secrecy provisions in other acts, should be repealed. The Report notes:
16.82 Two competing views were evident in submissions. On the one hand, there was support for the proposal to repeal the secrecy exemption on the basis that this would promote open government, and that other exemptions in the FOI Act provided sufficient protection. On the other hand, a number of agencies were concerned that the repeal of the secrecy exemption would leave insufficient protection for their information holdings. Particular concerns were raised by regulatory agencies that handle large amounts of personal and commercial information.
16.83 The ALRC has considered the secrecy provisions that currently invoke the exemption, and is persuaded that the exemption has an ongoing role to play. Particularly compelling in this regard are secrecy provisions which apply to a confined class of highly sensitive Commonwealth information—such as those included in the Civil Aviation Act 1988 (Cth) and Telecommunications (Interception and Access) Act 1979 (Cth). As set out in the Queensland Government’s response to the Solomon Committee report, these matters ‘require an absolute guarantee of confidentiality to ensure upfront public confidence and participation in certain processes of government’
Some fine print that hopefully won't be missed includes:
16.84 The recommendation that the exemption should be retained also recognises the fact that numerous other recommendations in this Report seek to narrow the scope of secrecy provisions, including, in most circumstances, linking them to an express harm requirement. Implementation of these recommendations will help to minimise the potential incursion of the secrecy provision exemption on the principle of open government. However, the ALRC considers that additional reforms are needed to ensure that the exemption does not operate to reinforce a ‘culture of secrecy’.Turning the schedule attached to s 38 into the "definitive list" would mean the end of the practice of putting other provisions in separate legislation that give effect to the section and override the FOI act. The ALRC discovered [16.24] four such provisions: National Health Security Act 2007 (Cth) s 90; Australian Prudential Regulation Authority Act 1998 (Cth) s 56; Superannuation Industry (Supervision) Act 1993 (Cth) s 252C; Reserve Bank Act 1959 (Cth) s 79A.
16.85 First, the secrecy exemption should be amended to include a definitive list of secrecy provisions that operate to conclusively override the FOI Act. This ensures that the minister responsible for administering the FOI Act is involved in the decision to include any secrecy provisions on the list.
16.86 Further, ministers who wish to add a secrecy provision to the list of exemptions should be required to assess, and put on the public record, the potential impact of the proposed amendment on the scrutiny of government action. Such an assessment could be included in the explanatory memorandum to ensure parliamentary scrutiny and debate. Among other considerations, relevant factors would include the breadth of the class of information to which the secrecy provision applies, and the likely relevance of the information for public scrutiny of government action.
The Commission declined to follow the NSW and Queensland precedents that give weight to the existence of a secrecy provision in another act not specified in the FOI act as a consideration, to be weighed along with other relevant factors, where a public interest test applies. The report recommends an amendment to the FOI act to provide that the act overrides obligations of non-disclosure in other legislation. Other exemptions apart from s 38 of course, depending on the content of a document, might still apply.
As long as there is some serious sorting out of the current schedule, and a vigilant guard is forever on duty to stop further creep through observance of the process recommended for any attempt to add to it, this isn't a bad compromise.
Two other issues of direct FOI relevance:
The discussion of the role of oversight bodies [15.57] including the Information Commissioner and this recommendation:
And discussion of protections for disclosure [16.93] including the following recommendation, which I think reflects what is proposed in the FOI reform bill:
(a) disclose an exempt document under the FOI Act pursuant to a bona fide exercise of discretion not to claim the exemption; or
(i) the document would not have been exempt had it been requested under the FOI Act; or