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Wednesday, June 29, 2011

"FOI for the private sector" on the agenda at Canberra law conference

The 2011 National Administrative Law Conference will be held in Canberra on 21-22 July, with the theme "Democracy Participation and Administrative Law." I'm not going this time but a number of sessions are of interest, apart from the big picture topics: Sven Bluemmel, Western Australian Information Commissioner on Corporatisation and electronic records: on a collision course with administrative justice?; and FOI papers by Dr James Popple, Australian Freedom of Information Commissioner on Commonwealth FOI, and Avinesh Chand, Clayton Utz, Extending FOI to the private sector—accountability strikes back or a bridge too far?

I will be particularly interested in what Chand has to say about extending FOI.

Senator Faulkner’s announcement in March 2009 came as a surprise and out of the blue.
"the Government will (later this year) provide the Australian Law Reform Commission with a reference to consider whether FOI should be extended to, or another disclosure regime provided for the private sector."
While this proposal had been considered but not recommended in the Commission's 1995 Open Government Report, Senator Faulkner said

"the Government considers it timely to re-examine this issue in the context of the general reforms to freedom of information and developments on disclosure regimes in both public and private sectors."
There was no attempt then or since to explain or sell the idea. After the announcement it disappeared, apart from a couple of desultory repetitions of the intention in parliamentary debate in 2009.  

In late 2010 I made an FOI application for documents on the subject held by the departments of the Prime Minister and the Attorney General and wrote about what was revealed in January. It seems when Senator Faulkner moved to Defence later in 2009 the government dithered over what to do with an initiative approved by Cabinet but largely owned by him. Eventually in April 2010 public servants-who apparently were not involved in research or advice about the idea in the first place-recommended moving on. Attorney General McClelland was happy to approve other references to the ALRC. Nothing was said publicly that the FOI reference had effectively been ditched.

The draft terms of reference contained in documents released to Open and Shut state the subject was to be referred to the Commission 

"(i)n recognition of the importance of disclosure, transparency and accountability, to enable proper debate on matters of importance to the community.."
The draft terms required
"consideration of the principles underpinning freedom of information laws and policies, and the transferability of these principles to the private sector", and the extent to which "greater disclosure by the private sector would enhance debate on issues of significance to the Australian community." 
The ALRC would have regard to the cost of any extension to the private sector, given the COAG commitment to reduce the regulatory burden on the community.

In April this year Minister for Privacy and Freedom of Information O’Connor wrote to me saying he had received correspondence from Senator Faulkner, now a backbencher, about the matter, that he was not in a position to comment further on the question raised with Senator Faulkner by me ( in essence, do you know that nothing ever happened and do you know why), but then to my surprise, that “I am giving the proposed reference to the ALRC further consideration.” Nothing has been heard since.

I look forward to reading Chand's analysis of the arguments for and against extending FOI to the private sector which have never had much of an airing here.

In the UK in January The Ministry of Justice unveiled plans to extend the scope of the Freedom of Information Act to include other bodies,some private companies, and announced plans for further consultation about extending the act to cover other bodies that perform "functions of a public nature". South Africa's Promotion of Access to Information Act 2000 may be unique in extending the right of access to any information held by a government or other body, to give effect to "the constitutional right of access to any information held by the State and any information that is held by another person and that is required for the exercise or protection of any rights."
If the extension was seriously examined within government it would be a pity if other issues about the scope of the FOI act were not considered including the case for removal of the full or partial exclusions of bodies listed in Schedule 2 of the act ,and the exclusion of Commonwealth owned corporations like NBN Co (brought in recently) simply because of their structure. There are probably plenty more NeHTA's out there.

Happy conferencing!

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