Views sought on Publication Scheme and Disclosure logs

The Office of Australian Information Commissioner has two papers out for comment by 28 March, both on aspects of the FOI reforms to commence on 1 May: a Publication Scheme draft using that office as the model, and a Discussion Paper, Disclosure Log.

Bradford District Care Trust (UK)

The Publication Scheme draft (p 8) commendably indicates the OAIC intends to go beyond the mandatory publication requirement to publish additional information about priorities, finances, lists including agency contracts, grants and appointments, and links to data sets, submissions to other bodies, and policies.These (mostly) are the headings used in the UK/ Queensland/Tasmanian publication schemes. An unexplained mystery is why the government chose not to legislate or mandate something along these lines.

The Disclosure Log paper provides guidance on the requirement from 1 May to publish a register of information that has been released under the FOI Act.

"The purpose of the disclosure log is to provide the public with ready access to information that has already been publicly released by an agency or minister. This advances in a practical way the open government objective of the FOI Act. Disclosure logs, together with the Information Publication Scheme that also commences on 1 May 2011, will facilitate a pro-disclosure culture across government."

Some in media circles are concerned about the legislative requirement that information is to be posted to the disclosure log online within ten working days after the FOI applicant was given access to a document, raising the prospect that a journalist applicant having done the hard yards to gain access could be scooped by a competitor who simply crawls the logs. A bigger concern is where an agency or minister publishes information at the same time that it is given to a journalist in response to an FOI request. The suggestion is a delay of at least a few days (the Queensland act gives  at least three days exclusivity to the applicant) would enable the journalist applicant time to analyse the information and possibly write a story for publication.

The paper (pp 14-16) outlines the issue:

The 2010 FOI reforms were part of a broader policy change in government to encourage proactive publication by agencies, including at the earliest opportunity. A principle of equal public access rather than exclusive individual access is inherent in the Information Publication Scheme and the disclosure log mechanism. A key function of the Information Commissioner is to promote greater openness for the benefit of the public generally. It is always open to an individual applicant, including a journalist, to make special arrangements with an agency about the scope, form and time of access. It is not part of the Information Commissioner’s role to script or endorse individual arrangements, beyond monitoring their consistency with the FOI Act. On the other hand, the Commissioner is aware that FOI works more smoothly and effectively if there is cooperation and trust between agencies and applicants. This is important when the need arises to discuss the scope of a request or to agree upon an extension of time to process a request. There is a risk that a dispute about the date of disclosure on a particular occasion will flow over and create an unhealthy climate for efficient FOI processing in the future.

 Two possible approaches are put forward for consideration and comment:

• An agency or minister could adopt the practice of updating the disclosure log on a particular day each week or fortnight. Applicants would thereby know in advance when publication would occur, and the public would also know when to search for newly published information. This may also benefit agencies in allocating appropriate resources to disclosure log publication to ensure adequate compliance with s 11C.

• Agencies and ministers could invite applicants to propose or negotiate the date of publication, provided this occurred within the ten working days stipulated in s 11C. The discretion would remain with the agency or minister to decide the actual date, but they would better understand any special concern of the applicant.

Not canvassed in the paper is the somewhat inequitable situation that an applicant who has paid often significant charges to gain access will see the same information made available on the agency website to others at around the same time, free of charge.

The NSW GIPA act s 66 provides:

(2)  If the information applied for was not publicly available at the time the application was received but the agency makes the information publicly available either before or within 3 working days after providing access to the applicant, the applicant is entitled to a full waiver of the processing charge imposed by the agency.