NSW PARLIAMENTARY LIBRARY RESEARCH SERVICE Freedom of Information – Issues and Recent Developments in NSW by Gareth Griffith Briefing Paper No 6/07 RELATED PUBLICATIONS • Freedom of Information and Open Government by Abigail Rath, Background Paper No 3/2000 ISSN 1325-5142 ISBN 978 0 7313 1821 6 May 2007 © 2007 Except to the extent of the uses permitted under the Copyright Act 1968, no part of this document may be reproduced or transmitted in any form or by any means including information storage and retrieval systems, without the prior written consent from the Librarian, New South Wales Parliamentary Library, other than by Members of the New South Wales Parliament in the course of their official duties. Freedom of Information – Issues and Recent Developments in NSW by Gareth Griffith NSW PARLIAMENTARY LIBRARY RESEARCH SERVICE David Clune (MA, PhD, Dip Lib), Manager..............................................(02) 9230 2484 Gareth Griffith (BSc (Econ) (Hons), LLB (Hons), PhD), Senior Research Officer, Politics and Government / Law .........................(02) 9230 2356 Talina Drabsch (BA, LLB (Hons)), Research Officer, Law ......................(02) 9230 2768 Lenny Roth (BCom, LLB), Research Officer, Law ...................................(02) 9230 3085 Stephanie Baldwin (BSc (Hons), PhD), Research Officer, Environment ..(02) 9230 2798 John Wilkinson (MA, PhD), Research Officer, Economics.......................(02) 9230 2006 Should Members or their staff require further information about this publication please contact the author. Information about Research Publications can be found on the Internet at: www.parliament.nsw.gov.au/WEB_FEED/PHWebContent.nsf/PHPages/LibraryPublications Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. CONTENTS 1. INTRODUCTION .......................................................................................... 1 2. THE NSW FREEDOM OF INFORMATION ACT IN SUMMARY........ 5 3. THE FREEDOM OF INFORMATION AMENDMENT (OPEN GOVERNMENT – DISCLOSURE OF CONTRACTS) ACT 2006 ........ 21 4 ISSUES .......................................................................................................... 35 5. QUESTIONS FROM RECENT CASE LAW............................................ 56 6. CONCLUSION ............................................................................................. 83 Appendix A Schedule 2, Exempt Bodies and Offices, Freedom of Information Act 1989 (NSW) Appendix B Alternative Supervisory Models – experience in other selected jurisdictions, Chapter 5, First Report on the Inquiry into Access to Information, Committee on the Office of the Ombudsman and the Police Integrity Commission, December 2002 Freedom of Information – Issues and Recent Developments in NSW EXECUTIVE SUMMARY 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 inter- relationship 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] Freedom