From the outset, the NSW Freedom of Information Act 1989 [the FOI Act] has been
subject to amendment and criticism. While its introduction was accompanied by high
expectations about improved democratic accountability, for many its actual operation has
proved inadequate. This paper updates Background Paper No 3/2000 - Freedom of
Information and Open Government. It surveys the major issues in FOI debate, along with
the recent developments in this area of the law, in terms of legislative reform and the
relevant case law.
Exemptions for law enforcement bodies: Under the category of Restricted Documents,
exemptions for law enforcement bodies have been expanded since 2000. For example,
under the Freedom of Information Amendment (Terrorism and Criminal Intelligence) Act
2004 additional exemptions were provided for documents created by ‘the Counter Terrorist
and Co-ordination Command of NSW Police, as well as for documents created by the State
Crime Command of NSW Police ‘in the exercise of its functions concerning the collection,
analysis or dissemination of intelligence’. [2.9]
Disclosure of government contracts: The issue of public private partnerships and the use
of ‘commercial-in-confidence’ exemptions under the FOI Act came to the fore recently in
relation to the Cross City Tunnel. In the last sitting days of the 53rd Parliament (2003-07)
the Freedom of Information Amendment (Open Government –Disclosure of Contracts) Act
was passed, establishing mandatory public disclosure requirements for major contracts with
the private sector. The Act provides for disclosure requirements for three classes of
government contract. State owned corporations (and their subsidiaries) are excluded from
the operation of the Act, as are local authorities. However, local authorities may be brought
under the Act by means of regulation. [3.1-3.7]
The Ombudsman and FOI: The Ombudsman’s external review powers are only to
‘recommend’ that, for example, an agency reconsider its determination to restrict access to
a particular document. They are not ‘determinative’ powers. The Ombudsman cannot
change or reverse a decision. That power lies with the Administrative Decisions Tribunal
(ADT). According to the NSW Ombudsman’s 2005-06 Annual Report, a comparison of
this State with other Australian jurisdictions ‘shows that NSW has the lowest rate of full
release of documents and the highest rate of partial release’. [4.2] For many years, the
Ombudsman has called for a review of the FOI Act, including a review of its interrelationship
with other access to information laws. [ 4.1] The Ombudsman is also among
those advocating the establishment of an FOI Commissioner. [4.4]
Parliament and FOI: More recent FOI regimes tend to include Parliament within their
scope. Examples where Parliament is covered by FOI include India, South Africa, the
Republic of Ireland and the UK, although in the last case this is currently under review in
the form of the FOI (Amendment) Bill. Under these newer FOI regimes, allowance is made
for parliamentary privilege. In relation to the older FOI regimes, established in the 1970s
and 80s, is that the Houses of Parliament are excluded from their reach. This is the case in
NSW. [4.5]
Secrecy provisions and FOI: Clause 12 of Schedule 1 of the NSW FOI Act, which is
headed ‘Documents the subject of secrecy provisions’ restricts an applicant’s right of
access to documents, where information in a document is subject to a ‘secrecy provision’ in
another piece of legislation. The meaning and the use made of this exemption has come
under close scrutiny in recent years, as agency’s are claimed to have relied on the secrecy
provisions exemption as a device to circumvent the FOI regime. The Appeal Panel of the
ADT has suggested that there are good grounds for reviewing secrecy provisions across the
board, in the context of their consistency with the objects of the FOI regime. This had been
spoken about for nearly 20 years, but never acted upon. As well, there is a strong argument
in favour of a review of the secrecy provisions exemption itself, to clarify and possibly
restrict its meaning. Section 38 of the Victorian FOI legislation is one possible alternative
model for consideration; section 38 of the Commonwealth FOI Act and s 48 of the
Queensland FOI Act offer further models for reform. [4.6]
Is there a presumption in favour of disclosure under the FOI Act? The position is not
entirely clear. According to Moira Paterson, one way of ensuring a more pro-disclosure
approach would be to insert into the Act ‘a principle of availability which establishes the
principle that information should be made available unless there is good reason for
withholding it’. This suggestion is along the lines of s 5 of the New Zealand Official
Information Act 1982. [5.1]
Does the ADT have a residual discretion to order access to exempt documents? In
University of NSW v McGuirk [2006] NSWSC 1362 the NSW Supreme Court held that the
ADT has a discretionary power to override the decision of an agency not to release an
exempt document. This residual discretion applies to Cabinet documents, unless they are
the subject of a Ministerial certificate. [5.2]
What is meant by documents which would disclose information ‘concerning any
deliberation or decision of Cabinet’? In terms of the exemption for Cabinet documents, the
most contentious is the exemption in clause 1(1)(e) – ‘matter the disclosure of which would
disclose information concerning any deliberation or decision of Cabinet’. Different
interpretations have been applied by the ADT. [5.7]
When will an FOI applicant be ordered to pay costs? Ordinarily the ADT does not make
costs orders in proceedings for the review of a reviewable decision. However, long-running
and complex FOI proceedings associated with a few applicants have raised the question of
the ‘special circumstances’ in which it is appropriate for the ADT to award costs pursuant
to s 88 of the Administrative Decisions Tribunal Act 1997. While each case will turn on its
own facts, it seems that in deciding whether circumstances are ‘out of the ordinary’ the
ADT will have regard to such criteria as: the appeal has no real prospect of success; the
applicant’s arguments are specious or frivolous, this having regard to the applicant’s
sophistication and experience in FOI matters; the level and the nature of the applicant’s
FOI activity, in particular where the applicant’s conduct is ‘grossly unreasonable’; and the
request is oppressive, putting the public service to unnecessary expense, by involving for
example the gathering up and analysis of many documents the applicant must already have.
[5.13]