Monday, June 20, 2011
ACT about to join the FOI reform movement
The Canberra Times reports ACT Chief Minister Katy Gallagher is planning to demystify the cabinet process and overhaul the territory's freedom of information regime as part of a new era of accountability reform to be revealed in the ACT Legislative Assembly this week.
No further detail in the CT but it looks as if Territorians are about to hear a response to recommendations in the Legislative Assembly Standing Committee on Justice and Community Safety report on Freedom of Information completed in March this year. The report was a long time coming-the Assembly commissioned the inquiry in December 2008. Once the inquiry got going (I last looked in February 2010 when nothing had happened) it seems to have proceeded ever so quietly: a total of just six public submissions, and three committee hearings in September/October of a few hours each, one with an all government line up consisting of the Attorney General and government staff, the others with the Australian Information and Privacy commissioners together, and the Queensland Information Commissioner separately. (Not a user of the act, an outside government type, or one of the few submitters in sight.)
The report proposes legislative reform to incorporate the key features of the 2009/2010 Commonwealth reforms including the "push model" but with some ground breaking variations in the approach to exemptions; the establishment of an ACT Ombudsman/Freedom of Information Commissioner/Privacy Commissioner replacing services provided to date by the Commonwealth; and ACT privacy legislation to replace the Commonwealth Privacy Act 1988 currently in force.
The significant FOI exemption features that would differ from Commonwealth law include:
 ACT legislation should follow the example of the New Zealand Official Information Act 1982. The report notes: "The Act does not list any categorical exemptions for cabinet documents and, in fact, does not use the word ‘cabinet’ at all."The act should "provide a clear basis, upon which cabinet documents may be released or made exempt from release under the provisions of the Acts."
 All other exemptions be re-cast so that they are subject to a single consistent public interest test that is subject to merits review.Deliberative documents
: An exemption on grounds that release may reveal the decision-making processes of government agencies should no longer apply in the ACT.
What the Gallagher government makes of all this should be clear later in the week-and what might have been remains for another post.
The full list of Committee recommendations follow.
4.16 The Committee recommends that the ACT Government introduce into the Legislative Assembly Bills to repeal the current FOI Act 1989 and to replace it with a revised FOI Act. The new FOI legislation should adopt as far as possible the key features of the current Commonwealth FOI Act 1982, including in particular the amendments of 1 November 2010. The exception to this principle of consistency should be arrangements for cabinet documents where, under Recommendation No.13, the new ACT legislation should follow the example of the New Zealand Official Information Act 1982.
4.17 The Committee recommends that the ACT Government introduce an appropriate model so that this legislation can incorporate future amendments which reflect amendments of the Commonwealth Act, subject to the will of the ACT Legislative Assembly, so that the ACT Act as far as possible maintains consistency with that of the Commonwealth.
4.18 The Committee recommends that, in framing the new FOI legislation, the ACT Government adopt contemporary Australian practice in relation to FOI such that:
there is a presumption of release of government information unless there are public interest grounds for withholding it in particular instances;
government adopt a ‘push’ model, publishing public sector information as a matter of routine, at nil charge; and
within this model, FOI operates an avenue of ‘last resort’, as part of a larger framework within which public sector information is made widely available.
4.19 The Committee recommends that, in framing the new FOI legislation, the ACT Government amend the objects clause of the Act so that it provides for a single public interest test to show whether documents should be released.
4.20 The Committee recommends that, in framing the new FOI legislation,
the ACT Government amend its objects clause so that it clearly states the context and purpose of the legislation.
4.21 The Committee recommends that, in framing the new legislation, the ACT Government re-words references to ‘public interest’ in the Act so that such clauses consistently provide for release unless there is a public interest in keeping information in-confidence.
4.22 The Committee recommends that, in framing the new legislation, the ACT Government provides an account of relevant and irrelevant factors in determining public interest, to be placed within the legislation.
4.27 The Committee recommends that, in line with practice in the Commonwealth and that of selected other state and territory jurisdictions, and as would be consistent with the implications of the new legislation, government departments use EDRMS and web technologies to publish the information for which they are responsible as a matter of routine, freely and at no-cost.
4.28 The Committee recommends that the ACT Government, in framing the new legislation, require the publication of online manifests—that is: structured lists, of information held by government agencies—to facilitate public access.
4.29 The Committee recommends that, in framing the new legislation, the ACT Government require its agencies to provide online disclosure registers with respect to requests for documents. Under this arrangement, documents released under FOI would be published online within a set period of original disclosure. Where documents are withheld, those decisions and their basis should be detailed on the disclosure register, including decisions made under the Territory Records Act 2002.
4.30 The Committee recommends that the ACT Legislative Assembly creates new privacy legislation for the ACT, in place of the Commonwealth Privacy Act 1988 currently in force. This ACT Privacy Act should create a new position of ACT Privacy Commissioner, situated in the ACT, to administer the
4.34 The Committee recommends that, in framing the new legislation, the ACT Government provides that requests for information by private persons regarding information about their own affairs be managed under Privacy legislation, by the ACT Privacy Commissioner; and that necessary changes are made to Privacy mechanisms in the ACT to allow this to occur.
4.44 The Committee recommends that the ACT Government introduce into the Legislative Assembly amendments to the Freedom of Information Act 1989 and the Territory Records Act 2002 such that the amended Acts rely on ‘purposive’ rather than ‘categorical’ criteria, and provide a clear basis, upon which cabinet documents may be released or made exempt from release under the provisions of the Acts.
4.45 The Committee recommends that in framing the new Freedom of Information legislation all other exemptions be re-cast so that they are subject to a single consistent public interest test that is subject to merits review.
4.46 The Committee recommends in framing the new legislation, the ACT Government remove all provisions for conclusive certificates, and creates a legislative mechanism such that conclusive certificates issued in the past be removed as documents, to which they have been applied, are requested under the new process.
4.47 The Committee recommends that, in framing the new legislation, the ACT Government create a charges regime which reinforces a citizen’s right to information rather than discouraging requests.
4.49 The Committee recommends the ACT Government, in framing the new legislation, in particular ensure that exemptions on grounds that release may reveal the decision-making processes of government agencies no longer apply in the ACT.
4.50 The Committee recommends, in framing the new legislation, the ACT Government add the Office of the Auditor-General to the list of exempt agencies (that is, ‘prescribed authorities’).
4.61 The Committee recommends that an office be created in the ACT, integrating the functions of Ombudsman, Privacy Commissioner and FOI Commissioner, thus replacing services provided by the Commonwealth and creating a new leadership role for FOI in the ACT.