08 January 2014


ACT Greens MLA Shane Rattenbury has proposed "legislation to substantially change the way that ACT Government information is made public"
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