Freedom of Information

Freedom of information (FOI), or the statutory right of access to government documents, is justified on the grounds that it encourages transparency and political accountability and discourages corruption and other forms of wrongdoing. At the federal level, the Freedom of Information Act 1982 formed part of a broader package of administrative law reforms in the 1970s and early 1980s, and was the first national legislation of its kind to be introduced into a country with a Westminster-style system of government. Over the following ten years, every jurisdiction in Australia, with the exception of the Northern Territory, followed the Commonwealth and enacted its own FOI Act.

Each FOI Act has four major features:

• government is obliged to publish information about its activities in general, and about whether it holds certain kinds of documents
• every person has a legal right to obtain access to information in documentary form, which is in the possession of ministers or government agencies, subject to the operation of specific exemptions and exclusions. Exemptions can apply to specified agencies (for example, parliamentary departments), or to categories of documents (such as documents dealing with international relations and security)
• there is a personal privacy dimension, which enables a person who has gained access to a document held by government that relates to his or her personal affairs to: request that the document be amended in some respect; appeal against a refusal to amend the document; and, even if the appeal is unsuccessful, request that an annotation be attached to accompany the record when it is shown to any person
• there is a right of review in relation to most decisions made under the Acts, both internal review within the agency and further review by a body external to the decision maker.

While there have been only minor changes to the federal FOI Act since 1982, there have been a plethora of reviews. The major review was the Open Government report by the Australian Law Reform Commission (ALRC) and the Administrative Review Council (ARC) in 1996. That report made 106 recommendations, some of the more important being:

• creation of a statutory FOI Commissioner to monitor and improve the administration of the FOI Act and to provide assistance, advice and education to applicants and agencies about how to use, interpret and administer the Act
• revision of the Act’s objects clause to promote a pro-disclosure interpretation of the Act
• rationalisation of the exemption provisions, and publications of guidelines, so that information is only withheld where this is in the public interest, and
• FOI charges should be compatible with the objects of the Act—a scale of charges should be determined by the FOI Commissioner, and access to an applicant’s personal information should be provided free of charge.

The Howard Government did not respond to the Open Government report. However, two private members’ Bills introduced by Australian Democrats’ Senator Andrew Murray in 2000 and 2003 took up several of its key recommendations. These Bills subsequently lapsed.

In 2007, there were several developments in relation to FOI.

The Australia’s Right To Know (RTK) campaign was launched in May 2007 by a coalition of 12 media organisations, including News Limited, the ABC, Fairfax, SBS, and AAP. The campaign’s aim is to draw public attention to the tightening of restrictions on journalists and free speech in Australia. As part of its campaign, the RTK commissioned an audit report into the state of free speech, which concluded that FOI performance is patchy across all governments. The report argues that the current system is not working in relation to ensuring access to documents relevant to government accountability. It also points to the prohibitive costs and delays in processing FOI requests. The RTK report was also critical of the federal government’s use of conclusive certificates. These certificates, which are essentially non-reviewable, allow ministers to deny the release of information on public interest grounds. The report states that the Commonwealth has issued 14 conclusive certificates since 1996 compared, for example, with New South Wales, where only two certificates have been issued since 1989.

On 24 September 2007, the then Attorney-General, Philip Ruddock, announced that the ALRC would again conduct a review of FOI laws and practice, although with more limited terms of reference than the 1996 Open Government report. The ALRC has been asked to consider the possible harmonisation of state and federal FOI laws, and ways of removing the FOI administrative burden on agencies. This review is in part a response to the RTK campaign, although News Limited chairman John Hartigan has described the limited terms of reference as ‘a disgrace’.

In contrast to the Howard Government’s cautious approach to FOI reform, the Australian Labor Party’s policy document on government information promises more radical changes. It states that a Labor government would abolish conclusive certificates and implement the recommendations of the 1996 ALRC Report, Open Government. It would appoint a Freedom of Information Commissioner, designed to make review processes more efficient and cheaper. It would also create an independent statutory Information Commissioner to act as a whole-of-government clearinghouse for complaints, oversight, advice and reporting for freedom of information and privacy matters. RTK campaign members have reportedly reacted positively to the policy, although they noted that the timeline and the detail of the reforms were yet to be decided.

Documentation
Kevin Rudd and Joe Ludwig, Government information: Restoring trust and integrity, Australian Labor Party, October 2007.
ALRC and Administrative Review Council, Open government: a review of the federal Freedom of Information Act 1982, 1996 (Australian Law Reform Commission) ALRC Report no. 77.
Irene Moss, Report of the Independent Audit into the State of Free Speech in Australia, commissioned by Australia’s Right to Know, 2007.