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Thursday, June 12, 2008

Complexity in the move to simplicitly

One of many positive recommendations in the Solomon report is that in Queensland most Freedom of Information exemptions be replaced by a single exemption where disclosure would on balance "be contrary to the public interest." If this is acted upon, it would not represent a first in Australian access to government information law.

Since 1993 local councils in NSW have been required by Section 12 of the Local Government Act to provide access to specified documents, and to"other documents" unless satisfied disclosure would on balance be contrary to the public interest. In many respects (eg the public availability of staff submissions to councillors) local councils leave NSW state government agencies for dead when it comes to transparency, but experience with this single broadly stated exemption suggests some important lessons that the Solomon review may have taken on board, at least to some degree.

What is clear is that it won't work unless parameters with teeth are established for those who have to implement the law and make judgments about the balance of public interest considerations. In NSW councils have floundered in this area with little help from the Department of Local Government or the Local Government and Shires Association. And the relationship between Section 12 and other laws is so complex (not helped by the rare occasions it has cropped up in the Administrative Decisions Tribunal), it was one of the matters referred by the Attorney General to the NSW Law Reform Commission in 2006.There has not been a word from them on this since, despite the plan to publish a consultation paper by-wait for it-December 2006.

Even when the guidelines are clear, an authority with clout needs to step in to protect against lawyerly attempts to find loopholes. Just one example.

The Local Government Act and the NSW Freedom of Information both contain a provision excluding as an irrelevant public interest consideration, that disclosure could lead to misinterpretation or misunderstanding of information in a document to be disclosed.(This still gets a lively run in some other jurisdictions around the country).

The LGA version relevant to councils in dealing with access applications outside FOI refers to as irrelevant the fact that a person-presumably any person-would misinterpret or misunderstand the information. The FOI provision that applies in the administration of the Act to all state and local government bodies in dealing with FOI applications, says it is not relevant that the FOI applicant would misinterpret or misunderstand the information. Maybe you can see the loophole coming. And the official guidance set out in the FOI Manual 2007 published by the Department of Premier and Cabinet and the Ombudsman does not disappoint.

Paragraph 10.4.19 under the heading"Ill-informed speculation and public confusion" reads:
"(A)lthough the possibility that the applicant him or herself may misunderstand information contained in a document cannot be taken into account, it may be a relevant consideration that release of the document would mislead the public generally, or otherwise cause general public confusion"(emphasis added).
Just how the decision maker is to make a judgment about who or how many people constitute the public for this purpose isn't the subject of any further wisdom, but you can see what an agile mind could do with this. On any technical subject most of us might not fully understand but why that really matters has not been established.

The Solomon Report is aware of the problem of leaving the public interest as an "amorphous" concept and has a go (Recommendation 42, page 155) at listing public interest factors that should be included in the law. It includes in the irrelevant category, the NSW FOI provision, that according to the leaders here means that it may be relevant to consider whether persons other than the applicant may be mislead or confused by the information disclosed. Is that what Solomon intends?

The NSW experience illustrates the complexity involved for Queensland in moving from complex legislation and a myriad of exemptions, to a simpler right to information law, but may the wind be at their back.

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