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Electoral and Administrative Review Commission Report on Freedom of Information QUEENSLANI) ELECTORAL AND ADMINISTRATIVE REVIEW COMMISSION REPORT ON FREEDOM OF INFORMATION DECEMBER 1990 9th Floor, Capital Hill Tel. 237 1185 85 George Street 008 177 154 BRISBANE QLD 4000 Fax (07) 237 1991 P 0 Box 349 Serial No. 90/R6 NORTH QUAY QLD 4002 PREVIOUS REPORTS OF THE COMMISSION 90/R1 Review of Guidelines for the Declaration of Registrable Interests of Elected Representatives of the Parliament of Queensland (August 1990) 90/R2 The Local Authority Electoral System of Queensland (September 1990) 90/R3 Queensland Joint Electoral Roll Review (October 1990) 90/R4 Queensland Legislative Assembly Electoral System (November 1990) 90/R5 Report on Judicial Review of Administrative Decisions and Actions (December 1990) Electoral and Administrative Review Commission ISBN 0 7242 4179 5 1 CONTENTS CHAPTER 1 INTRODUCTION 1 Background 1 Administrative Law Review Stages 1 & 2 2 2 THE REVIEW PROCESS 3 Principles Governing the Review Process 3 Nature and Role of FOI Legislation 3 The Issues 4 Submissions and Comments in Response 8 Public Seminars 8 Consultation 9 Other Inquiry Mechanisms 9 Structure and Content of Report 10 3 THE NEED FOR FREEDOM OF INFORMATION LEGISLATION 11 FOI Legislation in Australia and Overseas 11 FOI Legislation for Queensland? 12 Arguments Raised by the Submissions 13 Recommendations 18 4 RETROSPECTIVE OPERATION 19 Introduction 19 Arguments Raised by the Submissions 20 Analysis of Arguments Raised in Submissions 24 Personal Affairs Documents 24 Non-Personal Affairs Documents 26 Documents Necessary for a Proper Understanding 27 Defamation 27 Protection from Criminal and other Civil Liability 29 Recommendations 30 5 ARCHIVES 31 Introduction 31 Arguments Raised by the Submissions 32 Analysis of Arguments Raised in Submissions 36 6 COMMENCEMENT 40 Introduction 40 Arguments Raised by the Submissions 40 Local Government 43 Recommendations 44 11 7 Ear DOCUMENTS 45 Introduction 45 Objects Clause 47 Exemptions not Mandatory 48 Deletion of Exempt Material 49 Amendment of the Exemptions at Short Notice 49 Public Interest 50 The Public Interest in Disclosure and Non-Disclosure 52 Private Interests 53 Document Exemptions which FOI Legislation Should Contain 55 Cabinet and Executive Council 55 Matter Affecting Inter-Governmental Relations 59 Matter Relating to Investigations by the Parliamentary Commissioner and Audits by the Auditor-General 61 Matter Damaging Certain Operations of Government Agencies 64 Matter Concerning the Deliberative Processes of Government 63 Matter Relating to Law Enforcement and Public Safety 69 Legal Professional Privilege 72 Interests of Third Parties 74 Matter Affecting Personal Affairs 75 Medical Records 78 Private Donations to Libraries 81 Matter Relating to Trade Secrets and Business Affairs 82 Matter Communicated in Confidence 84 Documents Concerning the Economy 85 Matter Concerning the Financial and Property Interests of Government 86 Contempt of Court or Infringement of Parliamentary Privilege 86 Adoption Procedures 87 Documents Otherwise Publicly Available 87 Premature Disclosure 89 Document Exemptions Which FOI Legislation Should Not Contain 89 Interstate FOI Legislation 89 Specific Secrecy Provisions in Queensland Legislation 90 Research Activities 91 National Companies and Securities Commission (NCSC) Documents 92 Local Government 92 Reverse FOI 95 Conclusive Certificates 98 Review of Conclusive Certificates 101 Neither Confirm Nor Deny 102 Recommendations 104 8 BODIES COVERED BY FOI LEGISLATION 107 Introduction 107 Bodies Exempt from FOI legislation 108 The Courts and Judges in Respect of the Exercise of their Judicial Functions 109 The Legislative Assembly 109 111 The Governor 110 Commissions of Inquiry 110 Information Commissioner 111 Non-Exempt Bodies 112 Legal Advice Agencies 112 The Electoral and Administrative Review Commission and the Criminal Justice Commission 113 Auditor-General 113 Parliamentary Commissioner 114 Police Investigative Bodies 116 Statutory Authorities 117 Public Trustee 118 Legal Aid Commission 118 Queensland Grammar Schools 118 The Treasury Corporation 119 The Queensland Industry Development Corporation 119 Suncorp Insurance and Finance 120 Trustees of Government Superannuation Funds 120 Primary Producer Bodies 121 River Improvement Trusts 122 Parents and Citizens Associations 122 Local Government 124 Exemption by Regulation 128 Recommendations 130 9 PERSONAL AFFAIRS INFORMATION 133 Introduction 133 Separate Legislative Treatment of Personal Information 134 Amendment of Records 136 Identification of Applicants for Personal Affairs Documents 137 Privacy Reform 138 Recommendations 138 10 DOCUACEMS OR INFORMATION 140 Introduction 140 Definition of Document 143 Recommendations 143 11 COMPUTER-BASED INFORMATION 144 Introduction 144 Nature of the Right 145 Interrogation of Computers 145 Form of Access 146 Recommendations 147 12 FORM OF APPLICATION 148 Recommendations 151 iv 13 DUTY OF GOVERNMENT AGENCIES TO ASSIST APPLICANTS 152 FOI Handbook 153 Recommendations 154 14 TIME L MITS FOR PROCESSING REQUESTS 155 Recommendations 157 15 THE OBLIGATION TO GIVE REASONS 158 Recommendations 160 16 INTERNAL REVIEW 161 Introduction 161 Procedure Upon Internal Review 162 Recommendations 164 17 FRTFRNAL REVIEW 166 Suggested Mechanisms for External Review 167 Analysis of Suggested Mechanisms 169 The Information Commissioner 170 Review by the Information Commissioner 171 The Accountability of the Information Commissioner 174 Recommendations 175 18 CHARGES FOR FOI 176 Introduction 176 The Charging Regimes of Other Australian Jurisdictions 177 Commonwealth 177 Victoria 179 New South Wales 180 Analysis of the Arguments 180 The Waiver or Reduction of Charges 183 The Review of FOI Decisions 184 Voluminous and Vexatious Requests 185 Voluminous Requests 185 Vexatious Requests 188 Recommendations 189 19 PUBLICATION OF INFORMATION AND DOCUMENTS 191 Introduction 191 Cabinet Re ster 193 Recommendations 194 v 20 THE ADMINISTRATION OF FOI LEGISLATION 196 Introduction 196 Implementation and Administration of FOI Legislation 196 Adequate Resources for Implementation 199 Future Review of FOI Legislation 200 Recommendations 201 21 SUMMARY AND RECOMMENDATIONS 202 Conclusions 202 The Freedom of Information Bill 203 Consolidation of Recommendations 205 22 ACKNOWLEDGEMENTS AND CONCLUDING REMARKS 216 LIST OF ABBREVIATIONS vi GLOSSARY OF TERMS vui APPENDICES A Freedom of Information Bill (recommended by the Commission for enactment in Queensland) B Newspaper Advertisement Announcing the Commencement of Stage 1 of the Commission's Administrative Law Review C List of Public Submissions and Comments in Response D Program from Seminar on Freedom of Information and Judicial Review of Administrative Decisions and Actions, Friday 29 June 1990, Brisbane E Program from Administrative Law Public Seminar on 31 July 1990, Brisbane F Persons who Assisted the Commission's Review G List of Publications Referred to in the Text of the Report H Index of References to Particular Clauses of the Draft Freedom of Information Bill in the Text of the Report LIST OF ABBREVIATIONS AAR Administrative Appeals Reports AAT Administrative Appeals Tribunal ACLIS Australian Council of Libraries and Information Services ACT Australian Capital Territory the Act the Electoral and Administrative Review Act 1989 (Qld) AID Administrative Law Decisions ALN Administrative Law Notes ALR Australian Law Reports ANU Australian National University CJC Criminal Justice Commission CLR Commonwealth Law Reports CRQGD coordinated response of the Queensland Government Departments (S103) CSQGD coordinated submission of the Queensland Government Departments (S116) Cth Commonwealth the draft Bill Freedom of Information Bill recommended by the Commission. See Appendix A. FCR Federal Court Reports Federal Court the Federal Court of Australia the Fitzgerald Report Report of a Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct, 1989. FLR Federal Law Reports FOI Freedom of Information High Court the High Court of Australia Issues Paper No. 3 Electoral and Administrative Review Commission 1990, Freedom of Information (90/13). vii the Libraries and Archives Act the Libraries and Archives Act 1988 (Qld) the Libraries and Archives Regulations the Libraries and Archives Regulations 1989 (Qid) NCSC National Companies and Securities Commission NSW New South Wales N.Z. New Zealand Out. Ontario P&Cs Parents and Citizens Associations para. paragraph the Premier's Department The Department of the Premier, Economic and Trade Development QIDC The Queensland Industry Development Corporation r. regulation S. section Suncorp Suncorp Insurance and Finance Vic. Victoria VR Victorian Reports WA Western Australia Note: References to numbered submissions and comments in response in this Report are in brackets preceded by the letter `S'. For example, a reference to a submission numbered 67 will be `(S67)'. viii GLOSSARY OF TERMS Breach of confidence The failure to observe a duty of non-disclosure owed as a result of the receipt of information which has been communicated in confidence or for a specific purpose. Business Affairs Documents Documents the content of which relates to the business affairs of the applicant. Cabinet Register A record of Cabinet decisions, and of matters discussed by Cabinet, compiled by the Secretary of Cabinet. Defamation The act of communicating to another person, whether by speech or print, something which, in the eyes of ordinary people in the community, harms a third person's reputation. Deliberative Processes
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