Consultations of the Task Force with other Jurisdictions on their Access to Information Regimes

Australia

Access to Information Regime

Australia is a commonwealth with a central government, six state governments and two self-governing territories. The Commonwealth Government’s Freedom of Information Act 1982 (FOIA), gives individuals and entities the right to access documents in the possession of Commonwealth Ministers, their Departments, most statutory agencies and some government-owned corporations; to ask for personal information to be changed if it is incomplete, out of date, incorrect or misleading; and to appeal decisions not to grant access to a document or to amend or annotate a personal record.

The Act only applies to documents created after December 1, 1977 unless documents created earlier are needed to complete the picture. Some agencies and certain documents of specified agencies are exempted from the Act. The Australian Broadcasting Corporation and the administrative documents of the federal courts are covered by the Act.

The Act provides that it is to be interpreted as to further its object and discretion is to be exercised as far as possible to facilitate the disclosure of information. Decisions under the Act are made by an authorized officer approved by the Minister or a principal officer of the agency (Deputy equivalent in the Canadian system).

Under Australian law, there is an access request fee of $30.00 (about $23.00 Cdn) and an appeals fee of $40.00 (about $31.00 Cdn). Additional amounts can also be charged for search and retrieval, preparation, decision-making and reproduction of documents. Requests have to be acknowledged within 14 days and a decision regarding access must be made within 30 days of receipt (time may be extended for 30 days where consultation with third parties is required). Fees, including application fees, can be waived for any proper reason, including causing financial hardship to the applicant or if access would be in the general public interest.

Electronic requests are accepted. An agency may refuse to process a request for access if the work involved would substantially and unreasonably divert the resources of the agency from its operations or would unreasonably interfere with the performance of the Minister’s function, so that processing the request would not be in the public interest.

The Act provides that documents may be exempt from release in certain circumstances where it is deemed that the document is sensitive and would cause real harm if released, such as: unreasonable disclosure of personal information, legal advice, uncompleted research, business affairs information the disclosure of which would unreasonably adversely affect the business, information obtained in confidence or information affecting the national interest. Documents of a Minister containing matters not relating to the affairs of the agency or department are excluded from the coverage of the Act.

Where an information access request is denied, the Act has several stages of review: first to another part or to another level of the agency; second to the Commonwealth Ombudsman on issues of process or to the Administrative Appeals Tribunal (AAT) on substantive issues; and finally to the Federal Court and the High Court of Australia on matters of law. The AAT undertakes a full review and can make any decision which the original agency decision maker could have made.

In some instances a Minister may issue a certificate if the disclosure of a document could reasonably be expected to cause damage to the security, the defence or the international relations of the Commonwealth, or relations with the states within the Commonwealth, if it is a document of the Cabinet or the Executive Council -- except for purely factual material -- or an internal working document containing advice or deliberations, the disclosure of which would be contrary to the public interest. The Administrative Appeals Tribunal (AAT) may not order the disclosure of the information covered by the certificate, but can determine whether there exists reasonable grounds to issue the certificate and can recommend its revocation. If the Tribunal comes to the conclusion that there were no reasonable grounds for the decision to issue the certificate, the Minister, if he decides not to revoke the certificate, must table his reasons for the certificate in writing before both Houses of Parliament. Very few of these certificates are issued. Except for the certificates, the Agency head (Secretary), not the Minister, is responsible for the administration of the Act.

The Australian Law Reform Commission (ALRC) reviewed the Act in 1995 and made extensive recommendations for change, including a totally revised fee structure and the repeal of the Ministerial certificates. Very few of the recommendations have been implemented to date.

In addition to the Commonwealth law, all of the six states within Australia and the government of the Australian Capital Territory have passed similar freedom of information laws. At this date, the government of the Northern Territory has introduced an FOI Bill, but has not yet passed a law.

The general view, after almost 20 years of application, is that the Freedom of Information Act 1982 has effected a positive change in the culture of government. By and large the public service has embraced the philosophy of FOIA which has been reinforced by other measures for openness in government. Government now deals with FOIA more efficiently and less emotionally.

There are, however, some irritants and some concerns about costs to government. In the view of some government officials, the Act may have created unrealistic expectations that can not be met. In general, high volume departments are doing best, while small agencies are still struggling.

Interestingly, the use of the Commonwealth FOI legislation has not grown significantly in recent years. Some government officials attribute this to more government information now being provided informally and the ability to provide information proactively on Web sites. This has also resulted in FOIA formal requests becoming more complex and sensitive. The Senate has been pushing for even more departmental openness, including a proposal that all contracts and government grants be routinely published. A motion was passed in the Senate in June 2001 regarding the publication of a list of contracts of $100,000 or more.

Many parties believe that the government should disclose more information and that the law should be used only as a last resort. Critics however say the law is too complex, and that there is a lack of sustained political will and limited resources devoted to FOI.

In the view of some officials, FOIA has resulted in more objective and better written records, but may have made the public service more reticent about putting information in writing. Generally they agree that the fear that FOIA would impede frank advice to Ministers has not materialized, the Australian character not being reticent by nature.

There is no provision in the Act to deal with vexatious and frivolous requests. Some officials believe there should be such a provision as they claim to receive a number of such requests from people coping with mental illness. There is such a provision under the Administrative Appeals Tribunal Act, but its use is rarely upheld by the AAT and only once for FOI matters. The provision of the Act which allows institutions to refuse to process requests which represent an unreasonable diversion of resources is rarely used. As well, a departmental claim that requested documents do not exist or cannot be found must be supported by evidence of a very extensive search.

Some officials believe that the public interest test set out in the legislation is important because that is where the development of FOI philosophy occurs.

Most of the requesters under the Commonwealth law are individuals seeking their own information (90% of all requests in 2000-2001). Businesses don’t often need to use the Act to obtain information on their unsuccessful tenders because they usually get post-tender interviews. Parliamentarians from opposition parties are increasingly using the Act. Some officials believe that either the media does not know how to use the law effectively and makes poor use of it, or that the law is poorly suited to the typically short media deadlines. FOI is used more and more by lawyers in lawsuits as pre-discovery.

The $30 application fee ($24 Cdn) is not seen as a deterrent. This fee is usually not charged for access to personal information. Additional charges can be applied with no maximum for specific items at specified rates unchanged since 1985. They are not based on true cost recovery (1.54% of costs were recovered by way of fees and charges in 2000-2001). Notification of estimated charges are used mainly to encourage requesters to “discipline” and “focus” requests. There is currently a lot of pressure to recover more costs. FOI units have a duty under the law to assist requesters in making a request which, according to officials, saves considerable time later on. In applying the public interest test to waive fees, agencies take into account how much of the information will be disseminated and how widely. All officials agree that FOI resourcing, costs and sustainability are some of the biggest issues. The AG guidelines state that fees charged should only be those that an efficient system would charge; however, officials believe that agencies systematically underestimate the time based charges.

Everyone agrees that Ministerial certificates have not been abused as they have been used very infrequently since the Act was passed, and only by two agencies, Treasury and the Cabinet Office -- because of the political cost involved. However, the Ombudsman and AAT officials believe them to be unnecessary.

Some officials believe that FOI officers within departments do not receive adequate training, and that the job is viewed as a relatively junior level position with no career path and a high turnover rate in some agencies. With no government-wide standards, consistency in applying FOI legislation is also a problem. There is now a FOI home page and an FOI Practitioner’s Forum that meets every second month to provide information and support on FOI. The Ombudsman has made a recommendation that the government consider centralizing the FOI function within each department to manage the process more effectively. One drawback to this approach is that centralized units would have less knowledge of the files contained within regional offices.

Poor records management is identified by officials as a significant problem for the administration of the Act. There is little interest and little training in records management. The electronic file management system, which was recently introduced in some agencies, is not working well, and, in encouraging the filing of far too many drafts of a document, it is making the process of responding to an access request even more costly and time-consuming than it should be.

The status and proper management of transitory records and e-mails have not really been thought through in a practical fashion and they are a looming problem for FOI as well as for litigation. There is a need for front-end thinking on the exemptions which should be applied, the proper retention period, and the auditing standards of records management when documents are created.

Massive government outsourcing in recent years has resulted in a significant loss of documents and even less access to governmental records. Contractual provisions should ensure that the government does not lose “possession” of these documents. Privatization of government agencies has also resulted in some shrinking of the right of access. The Ombudsman would like to see a presumption that every privatized agency is covered by the Act and that exclusion be dealt with on a case by case basis. The Attorney-General’s Department is developing a Bill to deal with the effect of government outsourcing on freedom of information rights.

The internal review process under which a senior official reviews the original decision is generally held by the AAT and Ombudsman officials to be beneficial, as long as it is balanced with an external review mechanism, because it provides a timely mechanism to solve disputes, a learning opportunity for departments, and a reduction of complaints to the Ombudsman and AAT. Up to 25% of the original decisions to withhold documents are reversed as a result of internal review, however the system is not without its problems. Interestingly, some government departments would prefer not to have to conduct internal review processes, which would result in more appeals going right to the AAT where it costs close to $600 ($480 Cdn) to initiate an appeal which can take up to one year to complete. This could not be done, however, without either an amendment to the legislation or having the principal officer (Secretary) make all FOI decisions.

A lot of mediation is now done at the AAT level and up to 80% of appeal cases are resolved through mediation. Hearings are sometimes done by video or telephone conference and it can be a paper hearing on consent (this is very rare). Parties are represented by legal counsel or not. The AAT looks at all the documents in dispute.

A number of cases have gone to the Federal Court and some to the High Court of Australia. They have been useful to create a body of case law.

Although all officials we met with agreed that the Act basically works and that it is the administrative practices which are more in need of reform, they believe that the recommendations made by the ALRC in 1995 will improve it.

If there were an opportunity to change the law, all sources seem to agree that the Act should be in simple language, with no fees collectable where information should have been freely available in the first place. As more privatization of government services looms, the law must apply to outsourcing contractors. No agency currently exists to monitor compliance with the Act or to provide free advice or training. The Australian Government Solicitor has the major FOI legal practice and an extensive training program for which fully competitive fees are charged. Many support the establishment of an Information Commissioner to provide education and training on FOI and sustain impetus within the government. Without such leadership, critics claim that important issues such as public education, FOI training and managing increasing amounts of electronic and transitory information may not be dealt with the way they should.

The officials we met believe that the system should be as inexpensive, quick and informal as possible for the ordinary requesters. They stressed the importance of dealing with the practicalities and with the roles of the public service and political leadership. They insist that FOI cannot work in isolation and must be integrated with other government policies such as records management, information technology, government-on-line, and the accountability of senior public servants.