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Wednesday, June 06, 2007

A quality research paper on FOI

Dr. Gareth Griffith of the NSW Parliamentary Library Research Service, has written a briefing paper on "Freedom of Information - Issues and Recent Developments in NSW".

It's an excellent summary of developments since a similar paper prepared by the Research Service in 2000.

Dr. Griffith notes the persistent calls for review of the legislation and for an overhaul of administrative arrangements to make the Act more effective. He says it "is clear from the case law that attempts to gain access to more sensitive or contentious information held by government agencies are vigorously contested".

Dr. Griffith says we shouldn't be surprised at this, and quotes then Leader of the Opposition and subsequently Premier for 10 years, Bob Carr during debate on the FOI Bill in 1988. FOI legislation "will give a false impression of openness which will be dispelled through the bitter experience of applicants seeking to utilize the legislation......The Bill is littered with clauses and schedules that even the most inept bureaucrat will be able to use to secrete embarrassing material from public gaze".

The paper hails recent legislation requiring publication of information concerning government contracts as a significant positive step. "Many would argue this should be seen as a first step in an area of the law that is in need of comprehensive re-appraisal".

In addition to summarising important legislative changes, and significant court and tribunal decisions on the interpretation of the Act, Dr. Griffith highlights some of the important policy challenges that have yet to receive much attention in NSW:
  • like other "second phase" FOI legislative regimes around the world, should the Act be extended to include the Parliament itself?
  • the failure of the Government for nearly 20 years to undertake a review of secrecy provisions in other acts. Dr. Griffith reminds us of another Bob Carr 1988 comment: "(The secrecy exemption in) in schedule 1 will exempt any documents which are the subject of secrecy provisions in any Act. The habitual insertion of secrecy provisions to circumvent this legislation will make freedom of information almost a sham";
  • the strong arguments put for the establishment of a FOI or Information Commissioner to act as a monitor of, and advocate for FOI (a model proposed by a wide range of experts including the Australian Law Reform Commission, the NSW Ombudsman, the Public Interest Advocacy Centre, the Opposition, the Greens, among others). Dr. Griffith comments "the general case on behalf of an FOI Commissioner or some equivalent is obvious enough. Without some person or body with broad powers to operate in a supervisory, advocatory and advisory role, the FOI cause lacks both administrative focus and a strong voice. The case is a reasonable one".
  • a whole range of issues arising from recent case law - is there a presumption in the Act in favour of disclosure; does the Administrative Decisions Tribunal have a override discretion to order access to exempt documents; what constitutes a cabinet document and does the ADT discretion cover such documents; is the possibility that a document may mislead the public relevant in considering the public interest in disclosure; what constitutes substantial and unreasonable diversion of resources; can the ADT examine the adequacy of search for documents; does legal professional privilege apply to documents prepared for use in ADT proceedings; when will an FOI applicant be ordered to pay costs in the ADT?
The briefing paper represents a major work of valuable research. As regular readers would know, the Premier's only commitment to improving FOI, was an undertaking last year to publish by the end of 2006 an up to date manual for those in government agencies responsible for administering the Act. This is still to be realised.

Dr. Griffith's paper partly fills the gap.

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