GREENS BILL: Freedom of Information law reform

Today Mark introduced his Greens' Bill to reform South Australian Freedom of Information laws including improving the public's right to access Government held information and preventing Ministerial influence in decisions on FOI applications.

Freedom of Information (Miscellaneous) Amendment Bill 2018

This is, in fact, the third time in the last four years that I have introduced this bill. The first time was in November 2014. That bill lapsed when parliament was prorogued so I reintroduced it in March 2015. That second bill, ultimately, was brought to a vote on 2 November 2016 and I am pleased that it passed the Legislative Council, importantly, with the support of the Liberal Party. However, throughout 2017 the bill languished in that graveyard of private members' bills that we respectfully refer to as 'the other place.'

So, this is the third time and, with a change of government, I am hopeful that it will be third time lucky with this bill passing both houses. As I will explain in more detail shortly, the bill derives from recommendations made by the Ombudsman back in 2014. These recommendations sat on the former attorney-general's desk for four years. The former attorney-general had no appetite for reform. He boasted of how his government had supported 90 per cent of the Ombudsman's recommendations across his wide jurisdiction; however, none of the Ombudsman's freedom of information recommendations ever found any favour with the attorney so nothing happened.

Now we have a change of government. In the speech with which the Governor opened the this First Session of the Fifty-Fourth Parliament, His Excellency said, 'My government is determined that in everything it does it will be open and transparent.' The Governor also referred to promoting the public's right to information, so I am hopeful that this bill, which found favour with the Liberal Party in opposition, will also find favour with the Liberal Party now that it is in government.

In May 2014, the South Australian Ombudsman released a report entitled 'An audit of state government department's implementation of the Freedom of Information Act 1991'. The audit looked at how 12 government agencies are managing their responsibilities under the Freedom of Information Act, focussing principally on the 2012-13 financial year. It also draws, in part, on the Ombudsman's experiences as a review authority under the Act. To quote from the executive summary of the Ombudsman report, he says:

Government-held information is a public resource; and the public's right to access this information is central to the functioning of a participative democracy. Freedom of information legislation is one means by which the public can understand, review and participate in government decision-making. However, it should only have to be used as a last resort.

The Ombudsman's audit found that the agencies’ approach to information disclosure under the Act indicated two principal things: firstly, that the Act is outdated and its processes belong to a pre-electronic era; and, secondly, the agency's implementation of the Act is wanting and demonstrates a lack of understanding or commitment to the democratic principles which underpin the Act.

It revealed that most of the agencies are not coping with the volume and complex nature of recent freedom of information requests and that six of the 12 agencies failed to determine over 50 per cent of access applications within the time frame required by the Act. It revealed that most of the agencies did not understand how to apply the exemptions and the public interest test under the Act.

The Ombudsman's audit also revealed that it was common practice across all of the agencies to provide copies of freedom of information applications, determinations (draft or otherwise) and documents to their minister to 'get the green light' prior to finalisation of access requests. While the Act permits a minister to direct their agencies' determination, evidence provided to the audit strongly suggests that ministerial or political influence is brought to bear on agencies' FOI officers, and that FOI officers have been pressured to change their determination in particular instances. If a ministerial decision or direction is involved, it should be clearly set out in the agencies' determinations.

The audit also revealed that agencies' chief executives are not providing freedom of information or pro-information disclosure leadership. In nine out of the 12 agencies there is no directive at all from the chief executive, senior management or the minister about the operation or implementation of the Act. Only one agency stated that it has ever released an exempt document, despite the discretion to do so under the Act.

There needs to be an integrated approach to information access in this state, which includes freedom of information and privacy, the proactive release of information, with freedom of information used as a last resort. Of course, what goes along with that is adequate records management. So, the question that arises from the Ombudsman's audit is whether what is required is legislative or cultural change or a combination of both.

The report came up with 33 recommendations, and some of them do require legislation to be brought into effect. This bill addresses 10 of the 33 recommendations, and these are 10 recommendations that require legislative change. I will just quickly work through those changes.

The first change relates to the Ombudsman's recommendation No.1, which was:

The objects and intent of the FOI Act should expressly establish that the Act is based on the principles of representative democracy. The Act is to enable community scrutiny, comment and review of government's activities. Government and FOI agencies are mere custodians of the documents and information, which they hold on trust for the benefit of the public. Documents and information held by government and FOI agencies are a public resource, and the public has a right of access to government-held information, unless disclosure would, on the balance, be contrary to the public interest.

So, the amendment that my bill seeks to introduce is to include a reference to the principles of representative democracy in the objects section of the Act and also to acknowledge that documents held by government are 'a public resource to be held on behalf of the public and managed for public purposes'. The reason this is an important recommendation is that the evidence presented to the Ombudsman clearly shows that there is doubt on agencies' understanding and observance of the existing objects and intent of the Act. Clearly, agencies need more guidance.

The second amendment relates to the Ombudsman's recommendation No.24, where he says:

Following commonwealth and interstate freedom of information legislation, the Act should give express guidance on what factors should and should not be taken into account in determining whether disclosure of documents would, on balance, be contrary to the public interest.

This amendment is designed to address the difficulties experienced by FOI officers in applying the public interest test, and it does so by giving express guidance on what factors should and should not be taken into account when assessing the public interest. The amendments I have are similar to those used in commonwealth and interstate legislation.

It has often been said that the public interest is an amorphous concept. It is not defined in the current Freedom of Information Act; in fact, I do not believe it is defined in any South Australian statute. So, the determination of where the public interest lies is often non-justiciable and depends on the application of subjective rather than any ascertainable criteria. The public interest will no doubt change over time and according to the circumstances of each case.

The difficulties for agencies in ascertaining the public interest are widely acknowledged, and it is also generally accepted that legislators should not attempt to define the public interest in freedom of information legislation. But an alternative approach, the same one used in the Queensland Right to Information Act 2009, is to prescribe specific factors which must be considered in determining where the public interest lies. The FOI decision maker is then required to balance the factors favouring disclosure against the factors favouring non-disclosure and decide whether, on balance, disclosure of the information would be contrary to the public interest.

In New South Wales an FOI applicant under that Act has a legally enforceable right to be provided with access to the information unless there is an overriding public interest consideration against disclosure. In Tasmania, their Act lists 25 factors that must be considered when assessing if disclosure would be contrary to the public interest. The commonwealth Act was amended just a few years ago in 2010 to create conditional exemptions whereby access must be given to a document unless access would, on balance, be contrary to the public interest.

The next amendment in my bill is related to recommendation No. 8 of the Ombudsman's audit which says:

The Act should require agencies to promptly acknowledge receipt of an access application and an application for internal review. Both acknowledgments should inform the applicant of the relevant review and appeal rights and timelines, particularly in the event of the agency failing to make an active determination within the statutory time frames.

The Ombudsman also says:

In the meantime, the agencies should adopt this practice as a matter of policy.

Well, we believe it should be put in legislation. The Ombudsman's report notes that all departments routinely advise applicants by letter of the receipt of their FOI application but not all of them acknowledge receipt of applications for internal review of FOI decisions. Also, in cases where there is no active determination by an agency, applicants are often not in a position to know their rights to review. The onus to escalate the process and apply for a review or an appeal of a deemed refusal still falls to the applicant, even though there may have been no communication at all from the agency. For this reason it is important that applicants be well informed about their review and appeal rights from the outset, and this needs to be through an acknowledgment process.

I will just pause at that point to note that, as some members would be aware, I have twice been taken to the District Court on FOI matters, one of which related to deemed refusal. The subject matter was the redevelopment of the Festival Plaza behind Parliament House. The dispute arose when the statutory time period passed with the agency (DPTI) refusing to provide any documents. So, I deemed it to be a refusal and lodged an application for internal review. The agency again refused to respond to that and so I went to the Ombudsman. Eventually the Ombudsman determined that I had every right to see the documents and ordered them to be made available to me. That determination finally resulted in a District Court appeal at the suit of Walker Corporation, which was very keen for me and for this Parliament to be kept in the dark in relation to its plans for the Festival Plaza.

I use that as an example because as an applicant for documents under the Freedom of Information Act, I have ended up in court without there having been a single determination by the agency in relation to the documents. The agency simply refused to respond, not once but twice. So I think that reforming the Act in the way envisaged by the Ombudsman and as proposed in this bill is the way to go.

I would also add in relation to that matter that I believed I had a pretty good idea of the game that was being played by the Walker Corporation. I believe that they knew I would be ultimately successful, but their objective was to put as much time as possible between me and the documents so that when they finally were released, they would be stale and of little interest, particularly to the media.

So, I didn’t even bother engaging lawyers or briefing Counsel, even though the hearing date was looming. I suspected that they would relent, which they did a week or so before the scheduled District Court hearing. I got the documents, but by then, the plans had changed and the debate had largely moved on. For example, the massive new hotel that was planned to line King William Road and obliterate public views of important heritage buildings had been abandoned. Perhaps the Walker Corporation was reluctant for the public to know just how much public land they coveted for private commercial development.

As Freedom of Information appeals are effectively a no-cost jurisdiction, despite winning the now uncontested case, because I was representing myself, I wasn’t actually out of pocket. For the Walker Corporation, they were presumably happy to spend a few thousand fending off a pesky Member of Parliament who was paying too much attention to the State Government’s privatisation of the Festival Plaza and Riverbank precinct. The worked the system and it worked for them. This is why we need reform.

Back to the Bill before us, another issue in relation to the tardiness of governments responding to freedom of information requests has been picked up by the Ombudsman in recommendation No. 10, where he recommends:

… agencies must refund the fees to an applicant if they exceed the initial determination or internal review time limitations under the Act.

As we know, nothing focuses the mind like a nagging pain in the hip pocket and given that, as the Ombudsman said, half the agencies failed to respond to half the applications in the statutory time frame, if those applications were to become free and, given that some of them do involve hundreds or even thousands of dollars of application and processing fees, I think it would focus the mind the of agencies and they would make sure that they dealt with the applications in a timely manner.

That will not affect members of parliament to the same extent because, as we all know, the first thousand dollars of applications lodged by members of parliament is not subject to any fees. So that I think is an important reform to protect other members of the public who are often hit with large fees for exercising their rights under the Act.

The next reform relates to another part of recommendation No. 10. The Ombudsman recommends that:

Agencies have a discretion to impose a ceiling of 40 hours for processing access applications following consultation with the applicant.

All of us would be aware of responses we have received, sometimes in the realm of high fiction, where the claim is that it would unreasonably take away from the resources of the agency to have to look for this document or documents, which really on any sensible analysis should be pretty easy to find in a filing cabinet. In fact, the ability of inefficient agencies to rely on their inefficiency as a reason to deny access to information has always seemed to me to be quite absurd. We deal with that in this bill as well.

Members would also be aware that often the response from agencies is, 'We can't find the document' or 'It does not exist.' That is always a surprising finding, especially when you have identified the document by name. Perhaps what we should do more often is provide a photocopy of the document to the agency that we are seeking to obtain it from under FOI just to show them that, yes, we have the back of the truck copy but we do need an officially released one as well. What the Ombudsman said about documents that cannot be found or do not exist under recommendation 13 is:

The Act should include a provision similar to section 26 of the Freedom of Information Act 1992 ( WA ) , that an agency can determine to refuse access on the basis that ' documents cannot be found or do not exist '.

A determination of this nature should be subject to review and appeal.

Because at present the Act is silent as to what is required when agencies are unable to locate the requested documents. The Ombudsman notes that:

Agencies appear to struggle with offering adequate explanations to applicants when they cannot locate documents.

In contrast, Victoria, Queensland, Western Australia and the commonwealth all have legislation that expressly provides that, if documents cannot be found or do not exist, then this is construed as a determination to refuse access. The Ombudsman has recommended that SA include similar provisions in our Act and he also recommends that those determinations be reviewable and appealable, and the Greens agree.

Recommendation No. 19 relates to refusal of access. The Ombudsman says, and there are a range of points here:

The Act should be amended to:

  • lessen the number of exemption provisions
  • provide that information must be disclosed unless, on balance, disclosure would be counter to the public interest
  • expressly direct agencies to consider the objects and discretions in the Act before applying exemption provisions.

The agencies should in the meantime, adopt a policy that, in the context of the objects and intent of the Act:

  • discretions under the Act must be exercised in a way that favours disclosure of requested documents
  • documents requested under the Act should be released unless release would cause real harm.

In the Ombudsman's analysis of the agencies' use of exemptions, and based on his experience as an external review authority under the Act, he concluded that the list of 19 clauses and 50 subclauses and paragraphs of exemptions in the Act were 'unclear' and 'open to misuse' and that they 'tend to overwhelm the purpose of the Act'. The Ombudsman suggested that this list encouraged 'all but the most seasoned FOI officer to adopt a 'pick the exemption' approach.'

Evidence gathered in this audit confirmed that, again using the Ombudsman's words:

On receipt of an access application, agencies can often turn first to consider what exemptions might 'fit'.

In the Ombudsman's 2011-12 report, he basically made similar observations where he said that:

Agencies commonly submit 'blanket claims' over documents, rather than assessing the actual information within the documents

...most agencies regularly fail to provide detailed submissions to justify their FOI determinations.

The Ombudsman notes that, looking back over his own annual reports from 1992-93 to 2011-12, there are two key themes that he and his predecessors have observed, the first being that 'agencies commonly fail to provide reasons for denying access to documents', and the second that 'the starting point for agencies should be that documents should be released, unless release would cause real harm.' So this amendment addresses this second key theme, which was put most strongly in the 2002-03 report, that:

Agencies should always turn their mind to the objects of the Act 'to extend as far as possible, the rights of the public to obtain access to information held by government'.

The next amendment relates to notices of determination, which is picked up in the Ombudsman's recommendation No. 25. This, I think, is one of the most important principles of this bill because it goes to the heart of the misuse, by the executive arm of government, of the freedom of information system. The Ombudsman's recommendation is:

If ministerial 'noting' is to occur, the process should be established by a formal written policy, common to all state government agencies. The policy should:

  • expressly recognise section 29(6) of the Act
  • provide that if the minister has directed that the agency’s determination be made in certain terms, the agency should ensure that this is clearly stated in the determination
  • provide that if the minister or their staff has had any involvement in the ‘noting’ of a determination, then this fact and the extent of the noting should be stated in the determination
  • provide that the ministerial ‘noting’ process must be managed in a way that does not impact on statutory time frames.

What all that means is that when ministers provide a direction as to what to do in determining a freedom of information application, that process should be overt and not covert. There is no legal requirement under the Act for agencies to even tell their minister what FOI applications have been lodged or determinations made; however, it is clearly a widespread practice. The Ombudsman states in his report that:

Whilst it is appropriate for agencies to keep their minister informed of sensitive matters, the practice of ' ministerial noting ' can result in political interference, or the perception of political interference, in the FOI process. The Act provides a mechanism for transparency and accountability of government; and any perception of political interference in the decision making may affect public confidence in the process.

Evidence gathered in the Ombudsman's audit strongly suggests that ministerial political influence is brought to bear on agencies' FOI officers, and that FOI officers have been pressured to change the determination in particular instances. One witness referred to in the Ombudsman's audit:

indicated that they had received phone calls from a minister’s office asking that certain documents not be released—not because an exemption applied, but because the documents were considered to be embarrassing to the government.

That is just one example; there are many more in the Ombudsman's report. Clearly that is political interference, and we need to shine some sunlight onto that process. The other aspect of this is that the practice of ministerial noting can blow out the time frames for determining freedom of information applications.

As one witness to the Ombudsman's audit said, 'We can get an answer sometimes within days and sometimes it can drag for more than six months.' Clearly this has the potential to cause significant delays in the processing of freedom of information applications and reviews. It also means that the minister's office decides when to release information, which creates possibilities for political views to influence the timing. The Ombudsman notes:

I have come across an instance in an external review in which an agency released information the subject of an access application to a media outlet, prior to releasing the information to the applicant, an opposition member of parliament. Evidence given to the audit suggests that this is not uncommon.

To put that into plain language, if something embarrassing is about to be lawfully provided to the opposition or to a crossbench party under the Freedom of Information Act, ministers are directing that it be given to the media first. Clearly, that is not the process envisaged or lawful under the Act. By contrast, the freedom of information legislation in Queensland, New South Wales and Tasmania ensures the independence of agency decision-makers and that they are free from inappropriate influence.

It is the Ombudsman's view that if an agency's determination is directed by its minister it should be clearly stated in the determination. This amendment goes some way to address this issue by requiring that if a determination was at the direction of another person (that would include a minister) the determination must include the name of that other person and the extent of the direction given to the FOI officer.

The next amendment again relates to internal review, and I referred to recommendation No. 8 before. This is a continuation of that same issue where the agencies should be providing acknowledgements of receipt of internal review applications and restating the legal rights that an applicant has for further review. When it comes to external review, the Ombudsman, in recommendation No. 11, said:

The Act should allow an external review authority to remit deemed or inadequate determinations back to the agency for consideration.

Currently, external review authorities, under the Act, and that includes the Ombudsman, do not have the power to remit deemed or inadequate determinations back to agencies for their reconsideration. The Ombudsman notes that numerous external reviews received in his office are a result of agencies being unable to make the determination in time and often they have not been able or are unwilling to avail themselves of section 14A to extend the time to deal with the application at first instance. This puts an unnecessary burden on the Ombudsman's office when it is referred to them for external review if the agency has not considered or processed the application and documents have not been collected or collated. The Ombudsman states in his report that:

Anecdotal evidence from agencies to my office suggests that for some agencies, it is easier to allow the statutory time to pass and let my office 'do the work'. In such matters, the external review authority has to bear the burden of agencies' inability to manage its staffing resources and processes.

This amendment provides that the external review authority may remit the determination back to the agency for further consideration.

The final amendment I want to refer to relates to the improper direction or influence over FOI officers by others. The Ombudsman's recommendation No. 26 states that:

The Act should create offences of improperly directing or influencing a decision or determination made under the Act. A uniform protocol should be created for use across all agencies which codifies the requirements for accountable and transparent communication between ministerial offices and agency FOI officers in relation to access applications under the Act.

While the effectiveness of the FOI Act is largely dependent on those responsible for implementing it, the Act does not contain any prohibition about improper direction of or influence on an accredited FOI officer or other FOI staff. In contrast, New South Wales and Queensland legislation protect FOI decision-makers from improper influence by making it an offence to direct a person engaged in the administration of FOI legislation to make a decision which the person believes is not the decision that should be made under the Act. This amendment creates an offence of improper direction or influence and the penalty for that offence is a fine of up to $5,000.

Finally, I would say that I am willing to discuss any sensible amendments to this Bill with interested Members. I have deliberately confined this Bill to the recommendations of the Ombudsman, but that is not to say that these are the only reforms that are worth pursuing. I have started with the Ombudsman’s recommendations to de-politicise (as far as possible) the reforms in this Bill. Whilst the Greens support all these reforms, the primary architect is a Statutory Officer whose views should command respect from all sides of politics.

I commend the Bill to the Council.