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Wednesday, March 03, 2010

Traps in "right to information" ?

The NSW shift in the yet to commence Government Information (Public Access) Act from the FOI right of access to "documents" to the GIPA right to "information" is welcome, and to my mind a positive reform others should follow. It should result in more requests being dealt with in a relatively straightforward manner, for example through extraction of relevant requested information from electronic systems and, where no prior record exists, provision of access in a new record created for this purpose. But as you will expect  there will be a lot of poring over the fine letter of the law in this respect and others, and what words in the act mean or could mean. 

For example given the right to access information, could it be argued there is no right to access a specified document, and that any such application would be invalid because such a request is not a request for information? That is, a distinction should be made between the record itself and the information recorded in it? Sounds like a lot of hair-splitting but this has emerged as an issue in Scotland where the Freedom of Information (Scotland) Act is similarly framed. The Court of Sessions last year in a case brought by Glasgow City Council decided that an application for copies of statutory notices was not valid because it sought specific records not the information recorded in them. The Court ruled the right under the act was to be given information rather than a record or copy of a record that contains it. As the Court  said: "Put shortly the Act provides a right of access to information not documentation."

As a result of the decision,the Scottish Information Commissioner has recently issued Guidance on valid requests  with this summary of the situation:
 "The FOI Act provides a right of access to information, not documents.  However, requests for documents are not automatically invalid.  As long as it is reasonably clear that it is information contained in the documents that the applicant wants, an authority should respond - requesting a document is a commonplace way to describe information.  If the request is not reasonably clear the public authority should contact the applicant to seek, clarification."
The Commissioner 's advice to applicants is to couch requests for copies of correspondence or contracts as requests for information contained in such documents, not the documents themselves.
There are similarities and some differences between the Scottish and NSW acts. It is difficult to say with confidence how the GIPA Act will be interpreted, and a decision of a Scottish court is well, interesting, but that's about it. Both acts confer a right to access information which extends to information recorded in any form. Both include a provision that the applicant be given access in one of a number of forms including to a copy of a record containing the information. The Court of Sessions [42-48 and 53-57] reasoning was that this right to access a copy of a record only followed once there had been a valid application for information in accordance with the Act.

The GIPA act is beneficial legislation, and is likely to be interpreted in a way that advances rather than limits individual rights concerning access. Like Scotland however rights of citizens and obligations of agencies are framed in terms of rights to access information. An important difference of potential significance is that the GIPA Act (Section 72) states the applicant is to be given access to the record containing the information and record is defined (Schedule 5 Clause 10) as any document or other source of information compiled recorded or stored in written form or electronic process, or in any other manner or by any other means. There is no similar reference to a document in the Scottish act. Arguably this makes a difference, the line being that access rights spelled out elsewhere in the NSW legislation, by implication, extend to a right to a document that contains the requested information.

You would hope that unlike Glasgow City Council, NSW agencies, or their advisers won't be nit picking along these lines. It will be interesting to see what guidance the Office of NSW Information Commissioner provides and whether to be on the safe side applicants will be urged to make it clear they seek access to information, even when asking for specific documents.

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