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Friday, March 18, 2011

FOI 101: read the act and Guidelines urges Commissioner.

The Australian Information Commissioner, as reported by Sean Parnell in The Australian today:
"The message of cultural change has certainly got across, including at the highest levels in government," Professor McMillan said. "But I'm also struck by the number of instances in which officials making decisions have just not adequately read the new act or the guidelines. "They've made decisions that clearly show they're not up to date with the detail of the new law." Professor McMillan said the mistakes were not deliberate -- "simply ignorance" -- but would be reflected in decisions by his office."
I haven't been through the Commissioner's Guidelines in any detail. Of particular interest is Part 4 on conditional exemptions and the application of the public interest test. But one user of the act, on reading those relating to charges (Part 6) told me yesterday:
"You'd need to be a lawyer with a retinue of lackeys to be able to remember all the exceptions and convoluted reasoning behind all that crap. No wonder lawyers charge like the proverbial. It is mind-numbing stuff."
There is also the question of what meaning to attach to the legislative requirement that an agency "must have regard to" the Guidelines in performing a function or exercising a power under the FOI Act (s 93A(2)). That's something short of "must act in accordance with" or similar words that would give them binding character. They mean "can't be ignored" but....

I'd be interested in any views on this.

With regard to charges, there is still plenty of room for distress and dismay on the part of applicants when faced with the bill for an application for non-personal documents, and for argument about the equity of the charges regime. Parnell refers to one aspect, in the context of the public release of documents:
Many journalists, meanwhile, are worried about the introduction of disclosure logs on May 1, when the legislation requires agencies to start publicly detailing their FOI releases within 10 business days. Already, Treasury is publicly releasing FOI documents the same day they are given to an applicant, removing any competitive advantage journalists might have over rivals. Professor McMillan is reluctant to intervene in such disputes, recommending only that agencies negotiate an outcome with applicants if they want a "constructive, working relationship on FOI". Journalists could argue there should be no processing charges for documents of public interest that would be made available to everyone.
I imagine beancounters looking over the shoulder of journalists might be asking the same thing.

The Guideline on rebate or waiver of charges on public interest grounds (6 at 4.53) state:
“There is no presumption that the public interest test is satisfied by reason only that the applicant is a member of parliament, a journalist or a community or non-profit organisation. It is necessary to go beyond the status of the applicant and to look at other circumstances. The fact that a media organisation may derive commercial benefit from publication of a story based on an FOI Act request is a relevant consideration, but is not alone a basis for declining to reduce or waive a charge. Nor is an applicant required to show that they will publish the document. The decisive issue is whether disclosure (and any resulting media item) will be of general or identifiable public interest.”

The Commonwealth act seems to fall short of the NSW Government Information (Public Access) Act on this last point. GIPA (s 66) creates an entitlement to a 50% rebate where
the information applied for is of special benefit to the public generally.  Of course they both fall even shorter of Tasmania, where under the RTI act an application fee but no charges apply.

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