on the premise that Government information is public information unless there is a really good reason for it to be kept confidential.The Rattenbury Freedom of Information Bill 2013 (ACT) has
been presented as an exposure draft so that the public can be involved in a discussion and make comments that will be considered on the legislation. It is important to consider the public’s views on which information should be available to the public and which information should be confidential to Government. The Bill repeals the existing Freedom of Information Act 1989 and creates a new modern freedom of information (FOI) scheme.
The Bill recognises that a public right to government information is essential for an effective democracy and it is designed to make information held by the government much more accessible to the community.
The Bill creates a statutory right of access to information held by the Government and sets up a clear framework for determining the public interest in the disclosure or non‐disclosure of information. Information will only remain confidential where it is on balance contrary to the public interest to release the information; that is there must be a clearly identifiable harm to the public interest from the release of the information that outweighs the public interest in disclosure and necessitates non disclosure.It's thus similar to the revised Commonwealth FOI statute. The Commonwealth regime is increasingly problematical, with cuts in public sector resourcing being used as a justification - or excuse - for slow responses or non-responses.
The Office of the Australian Information Commissioner for example explains that it is a "micro-agency" and thus not able to supply information about privacy policy and implementation that it acknowledges is held by the OAIC and is covered by the FOI Act. The Act is of course overseen by the national Freedom of Information Commissioner within the OAIC.
Presumably we'll see numerous agencies discovering - quell surprise - that they too are micro-agencies and thus unable to give effect to the explicit Objectives in the Act.
The Rattenbury Bill elides questions about resourcing and regrettably does not address problems with the broader ACT government record keeping regime, in particular adherence to best practice protocols in the creation and management of 'active' records and the absence of an effective archives statute.
The Explanatory Statement for the Rattenbury Bill indicates that
In addition to revising the scheme for providing information in response to particular requests, the Bill also places a much greater emphasis on the proactive disclosure of information without the need for a formal request for the particular information. Commonly referred to as the ‘push model’ for the provision of information, the Bill mandates that a range of information including policy documents, details about agency activities and budget as well as certain expert reports and from three years after they are written: incoming minister briefs, question time briefs and estimates and annual reports briefs.
The Bill further imposes an obligation on government agencies to continually consider what additional information they can make proactively available and authorises agencies to provide information in response to informal requests for information to avoid the need to go through the formal FOI process. The intention is that requests for information under the application process in the Bill will become a last resort and that the community will have access to a much larger range of government information without the need for formal requests. …
While other jurisdictions have created stand alone statutory information commissioners to oversee the operation of FOI laws, the Bill instead gives this role to the ACT ombudsman, similar to the model operating in South Australia, Tasmania and New Zealand. The ombudsman will play a very important role in the new scheme. The ombudsman is given the responsibility for making legislative instruments under the Bill as well as reviewing decisions and investigating complaints.
The Bill creates a new scheme for the review of decisions. It removes the option for internal review and provides for two avenues for the review of decisions under the Bill; ombudsman review and ACAT review. A person will be able to elect if they would like the decision to be reviewed by the ombudsman or by the ACAT. In addition, a person can apply for review of a decision of the ombudsman to the ACAT, in which case the ACAT must be constituted by three Members. The Bill will expand the ability for people to apply for review of decisions by allowing any person to make an application for ombudsman review and ACAT review of decisions.
The Bill largely continues the system for the correction of incorrect records by allowing people to apply for amendment of their personal information to ensure that it is accurate, up-to date and not misleading.
In providing greater access to government information, the Bill does potentially limit the right to privacy. There are significant protections restricting the release or publication of personal information within the Bill and anyone whose personal information is the subject of an access request must be consulted and given the opportunity to put their views about the release of the information (see clause 36). Schedule 2 (Factors to be considered when deciding the public interest) contains an explicit recognition of the public interest in protecting the human rights including the right to privacy of individual citizens. Any limitation on a person’s right to privacy must be considered by the decision maker and balanced against any relevant public interest factors favouring disclosure.'An Empirical Analysis of Suppression Orders in the Victorian Courts: 2008–12' by Jason Bosland and Ashleigh Bagnall in (2013) 35(4) Sydney Law Review 671 comments
It is frequently bemoaned that Victorian courts make far too many suppression orders compared to courts in other Australian jurisdictions, and that the rate is on the increase. However, it is not only the frequency of suppression orders that has attracted concern: commentators also claim problems exist with the breadth, clarity and duration of such orders. In response to these concerns, this article undertakes an empirical study of suppression orders made by the Victorian courts between 2008 and 2012. The results show that the rate of suppression orders in Victoria is, indeed, high and appears to be increasing. It is also found, consistent with anecdotal claims, that there are significant problems with the breadth, clarity and duration of orders. Each of these problems is considered in detail and, in light of the empirical findings, an evaluation is undertaken of the model legislation on suppression orders endorsed by the Standing Committee of Attorneys-General and a modified version of that model, the Open Courts Bill 2013 (Vic), introduced into the Victorian Parliament on 26 June 2013.Bosland and Bagnall argue
Judges in Victoria have repeatedly stressed that the making of a suppression order — an order restricting publicity being given to particular legal proceedings — is a ‘wholly exceptional’ event. But despite such firm judicial statements, it is often lamented that in practice the Victorian courts grant far too many suppression orders compared to courts in other Australian jurisdictions and that the number of such orders is increasing. Indeed, these concerns appear to be played out in some of the reported figures. For example, a 2008 study chaired by Prue Innes and commissioned by Australia’s Right to Know (‘Innes Study’) reported that between 2006 and 30 June 2008, 649 suppression orders had been issued by the Victorian courts; by comparison, only 54 orders were made in New South Wales during the equivalent period. Since then, figures produced by Andrea Petrie and Adrian Lowe for the Media, Entertainment and Arts Alliance suggest that the rate in Victoria has increased quite dramatically, with 644 such orders said to have been made in 2011 alone. But not only are the Victorian courts said to grant too many suppression orders, they have also been criticised for making orders that are far too broad and imprecise in scope, and often without sufficient temporal limitations. The suggestion is that many of these orders would not stand up to scrutiny and that the fundamental common law principle of open justice is being eroded in Victoria.
In response to such claims, this article presents the results of an empirical study of all suppression orders distributed to the media by the Victorian courts over the period 2008–12. It is important to note, however, that this research does not merely update the earlier mentioned research undertaken by Innes. That study looked at the ‘basic numbers’ of suppression orders across multiple jurisdictions in Australia but did not, except for a relatively small sample of 141 orders made by the Victorian courts, analyse the orders themselves. Thus, the present study is both broader and narrower. It is limited to orders made by the Victorian courts; however, in addition to reporting how many orders have been made by year and by court, it also provides comprehensive data on the orders themselves, including the ‘types’ of orders that have been made, their duration, clarity, subject matter and scope, and the powers relied upon by the courts in making them. It is from this data that a clear picture can be gleaned of the orders that are actually being made.
The present study is both important and timely for a number of related reasons. First, there is, of course, intrinsic value in simply providing a picture of what is happening in the courts. This can be used either to confirm or to deny many of the anecdotal concerns raised about the number of suppression orders coming out of Victoria. But, as pointed out by Andrew Kenyon, empirical and comparative research in this area also has a greater role to play in providing for a better understanding of suppression order law and practice, and in evaluating what reforms, if any, might be warranted. In presenting an in-depth, comprehensive and objective analysis of the suppression orders that have been made by the Victorian courts over an extended period, this article makes a key contribution to such a body of research.
Second, the present empirical study is timely because of the current momentum for nationwide law reform in the area of suppression orders. In 2008, in an attempt to clarify the law, achieve greater uniformity across jurisdictions and respond to concerns that suppression orders were being made too often in some states, the Standing Committee of Attorneys-General (‘SCAG’) established a working group to develop draft model legislation. The draft legislation was endorsed by the SCAG in May 2010 and has since been implemented in New South Wales and in modified form at the federal level. The SCAG model has not yet been enacted in Victoria. However, on 26 June 2013, during the writing of this article, the Victorian Attorney-General introduced into the Victorian Parliament a Bill designed to ‘strengthen and promote open justice in Victoria’s courts’. 15 While the Open Courts Bill 2013 (Vic) (‘Open Courts Bill’) is based on the SCAG model, significant changes have been proposed to many of its provisions. The current research is, of course, directly relevant to decisions about whether the Bill should be passed in its current form and what, if any, modifications might be needed. An assessment of relevant aspects of the SCAG model and the Bill is undertaken in Part IV below. But even assuming the Open Courts Bill is passed, there remain at least two possible uses for the current research. First, it can be used as a ‘baseline’ to assess the effect of any legislative change that is introduced. Second, even if the legislation ultimately enacted mainly reinforces and clarifies existing law, the current research will be useful in providing guidance on what modifications might need to be made to matters of practice and procedure in applying that law.
The article proceeds as follows: Part II sets out the fundamental legal principles governing open justice and the making of suppression orders. This description of the law is necessary to understanding and evaluating the empirical data. Part III outlines the methodology used in the present study as well as the results. The results show that the rate of suppression orders in Victoria is, indeed, high and appears to be increasing. It is also found, consistent with anecdotal claims, that there are significant problems with the breadth, clarity and duration of orders. Part IV explores the possible reasons for each of the main findings and considers, in light of the findings, whether either the SCAG model or the Open Courts Bill provides a suitable solution. Part V concludes.
