Freedom of Information (Miscellaneous) Amendment Bill

Second Reading

I am pleased to introduce the Freedom of Information (Miscellaneous) Amendment Bill 2020. This bill makes a raft of amendments to the Freedom of Information Act 1991 to update it in line with legislative developments interstate and changes in technology.

Representative democratic government is supported and enhanced by ensuring that proper public scrutiny of government activity occurs. Documents and information held by government agencies are a public resource. Consistent with these principles, members of the public should have a presumptive right to access such information, subject only to such restrictions that are consistent with the public interest and the preservation of personal privacy.

Further to this, our government, the Marshall government, took a strong set of policies to the 2018 state election, prioritising open and accountable government and transparency. This is also reflected in my justice agenda. The Freedom of Information Act has been in operation since 1992. Since then, there have been sporadic amendments to the act and ad hoc and fragmented policy developments in response to concerns raised within the public sector by the media and members of parliament (frequently by me in opposition, I might add) and growing demands within the community for increased government openness and accountability. The last significant amendments to this act occurred in 2004. Since that time, developments in technology and information management have increased the demand on government to be more efficient, flexible and transparent in its practices.

In May 2014, nearly six years ago, the former ombudsman, Mr Richard Bingham, released his report, an audit of state government departments' implementation of the Freedom of Information Act. That 2014 report was a snapshot of how 12 government departments were managing their responsibilities under the act. It is a very good read. That 2014 report contained a number of recommendations for amendments to the Freedom of Information Act, which are fully endorsed by our current Ombudsman, Mr Wayne Lines.

To date, these legislative changes have not been made, although several of those proposals have been implemented by way of administrative policies, including proactive disclosure by online publication of regularly requested information, including information about spending and travel by ministers and agency executives; publication of disclosure logs setting out the details of applications and information previously released under FOI that are likely to be of interest to other members of the public; provision of a schedule of documents with a notice of determination of an application; and the introduction of an online FOI application system.

I do note, however, legislation introduced into the other place by the Hon. Mark Parnell MLC, another strong advocate for transparency in this area, in his attempt to deal with recommendations of the 2014 report. I take this opportunity to thank the honourable member for his continued interest in freedom of information reform and reflect on our shared history of years of applications to governments as members of the opposition and crossbench in this parliament.

After I took office, I asked the current Ombudsman for his views on implementing legislative changes recommended in the 2014 Ombudsman's audit report. He submitted to me, as Attorney-General, that given the time that has elapsed since the 2014 report a comprehensive review of the FOI Act was required that takes all past and current issues into account. The Marshall Liberal government is committed to keeping the law and our policies current and relevant, which is a key priority to our government's justice agenda.

This bill follows a comprehensive review of the Freedom of Information Act, as referred to earlier, which has not, as I said, seen any significant update in over 15 years. The bill now proposes more than 40 amendments to the Freedom of Information Act. Some of the more significant changes include:

legislating for proactive disclosure of government information and publication of disclosure logs so that these requirements can be extended beyond state government agencies to FOI Act agencies, such as councils and the South Australian universities, where this is beneficial. By legislating for proactive disclosure and disclosure logs, all agencies and their officers who publish information under these provisions will receive the protections under liability contained in the FOI Act, including protections against actions for defamation or breach of confidence;

reinforcing the presumption in favour of disclosure by amending the 'objectives' provisions of the act and providing guidance about how public interest factors are to be taken into account in determining applications for access to information;

legislating the 10-year rule for release of cabinet submissions;

providing that refusal of access on the basis that 'documents cannot be found or do not exist' is a reviewable determination. This reverses the decision in El Shafei v Central Adelaide Local Health Network [2017] SACAT 5. This change is further supported by amendments giving the Ombudsman specific powers to require an agency to explain what searches were undertaken and allowing the Ombudsman on external review to remit deemed or inadequate determinations back to the agency for reconsideration;

increasing the Ombudsman's powers on external reviews to obtain documents from agencies;

creating an offence of improperly directing or influencing a decision or determination made under the act. That, incidentally, is a recommendation made back in 2014;

precluding agencies from charging processing fees if they exceed the statutory time limit for giving access to information;

updating the act to reflect electronic communications and electronic information management and storage methods. This includes setting limits around what an agency is expected to do in searching for and producing documents from an 'electronic back-up system'. In addition, the act is updated to recognise the specific challenges posed by dealing with access to CCTV and similar footage by clarifying that agencies may charge a fee for retrieval, viewing and redacting of 'documents' (including de-identification of CCTV and similar footage where it is practicable);

extending the time agencies have to deal with an application from 30 calendar days to 45 days, and internal reviews from 14 to 20 days, to reduce the significant number of 'deemed refusals';

providing a section 19(2a) equivalent for internal reviews to facilitate provision of access to documents after the internal review time limit has expired, to ensure agencies are covered by the liability protections of the FOI Act and to reduce external reviews. Similar changes are made to section 39 to facilitate provision of access to documents during an external review;

allowing for applicants and agencies to negotiate extensions of time for dealing with access applications and for the agency's principal officer to extend the time limit where an unusually high number of applications have been received, including multiple related applications from an applicant or applicants acting in concert;

setting clearer limits around what is considered an unreasonable request for access;

allowing the Ombudsman to declare an applicant vexatious on the Ombudsman's own initiative or on the application of an agency such that the Ombudsman or an agency may refuse to deal with an application by the person. Such a declaration will be reviewable by SACAT;

providing greater flexibility on who may deal with FOI applications by removing the seniority requirements for officers dealing with part 4 Amendment of Records applications, due to the straightforward nature of such applications. Although, as members might be aware, this is a section of the FOI Act that has hardly ever been touched in its operation;

in relation to reviews by SACAT under the act, this review process has been streamlined so that external review applications must first be made to the Ombudsman. The Ombudsman has the investigative capability and is best placed to deal with the reviews at first instance. Further review will then be available by SACAT, other than on the question of sufficiency of search, which is now reviewable under the act by the Ombudsman but which SACAT is not equipped to investigate. Agencies will no longer be limited to reviews on errors of law and will also be able to apply to SACAT for a review of a determination that a document is not an exempt document, noting that there is no change to the position that agencies must pay the other party's costs where an agency initiates the SACAT review; and

changes are made to the document and agency exemptions in schedules 1 and 2 of the act, including:

deleting the subcategories of document exemptions in schedule 1 of the documents containing unproved criminal allegations, since these should be covered by the existing exemption for unreasonable disclosure of personal affairs information, and documents relating to an agency's commercial activities, on the basis that this overlaps with the clause 7 business affairs exemption;

merging the existing cabinet and executive council documents exemptions;

exempting information and correspondence prepared by agencies for the purpose of an audit by the Auditor-General while the documents are in the possession of the agency, to maintain the integrity of the audit and reporting functions of the Auditor-General and ensure the Auditor-General's existing status as an exempt agency is not undermined;

exempting documents containing matters the disclosure of which could reasonable be expected to identify the location of threatened or endangered fauna or flora, or other rare items of cultural or scientific importance, and thereby endanger the safety of these species or items; and

including a limited agency exemption for the Office of Parliamentary Counsel in respect of the documents it holds that are subject to legal professional privilege, similar to the existing schedule 2 exemptions of agencies, such as the Solicitor-General, Crown Solicitor and the Director of Public Prosecutions.

To sum up, this bill includes a range of measures designed to strengthen government transparency and accountability, to strengthen the public's 'right to know', as well as to further encourage and facilitate proactive release of government information by agencies. The bill also includes measures designed to enhance efficiency and sustainability in administering the Freedom of Information Act in recognition that increasing efficiency in the administration of the legislation will also ultimately operate to enhance transparency and public access to information under the act.

Finally, I commend all public sector employees across all offices and departments who undertake the tireless work of compiling and deciphering freedom of information assessments. I particularly do this because, I think for 16 years, I gave most of them a lot of grief. This is a body of work that requires often tremendous amounts of time and resources while modernisation of programs and processes has occurred. Further work will be done as implemented in this bill.

Before I conclude, I wish to place on the record the work of the former ombudsman, Mr Richard Bingham, and our current Ombudsman, Mr Wayne Lines, who have both provided an extraordinary amount of advice and review to bring the bill to its fruition in it being presented to the parliament here today. I will refer later to those who worked hard in that regard. I commend the bill to members and seek leave to have the explanation of clauses inserted in Hansard without my reading it because, Mr Deputy Speaker, as you will appreciate, there are 40 significant changes, and we would be here a very long time if I read them all out.

Leave granted.

 

Explanation of Clauses

Part 1—Preliminary 1—Short title 2—Commencement 3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Freedom of Information Act 1991

4—Substitution of sections 3 and 3A

This clause replaces the current provisions setting out objects and principles of administration with a new statement of principles and objects.

5—Amendment of section 4—Interpretation

This clause amends various definitions for the purposes of the measure.

6—Insertion of sections 4A, 4B and 4C

This clause inserts new provisions as follows:

4A—Exempt agencies

This section links to the definition of exempt agency in section 4.

4B—Accredited FOI officers

This section provides for accredited FOI officers and includes similar requirements to those currently specified in the definition of accredited FOI officer in section 4 of the Act but allows for small agencies to use the accredited FOI officer of another agency (where it is not practicable for the agency to have its own officer) and also allows a person to be designated as an accredited FOI officer for the purpose of dealing with applications for the amendment of records under Part 4 of the Act despite the fact that the person does not meet certain requirements relating to seniority.

4C—When document is held by an agency

This section sets out when an agency will be taken to hold a document for the purposes of the Act and in particular deals with documents contained in electronic backup systems.

7—Amendment of section 8—Defunct and restructured agencies

Section 8 is amended to provide that where an agency takes over some, but not all, of the functions of another agency, the responsibilities under the Act in respect of documents at any given time will lie with the agency that holds the documents at that time.

8—Insertion of Part 1A

This clause inserts a new Part setting out proactive disclosure principles and requiring the Premier to issue a proactive disclosure policy (consistently with the proactive disclosure principles) directing specified agencies to publish information relating to the agency or held by the agency (other than personal information of a person).

9—Amendment of section 9—Publication of information concerning agencies

This clause amends section 9 to reflect a change in terminology from records concerning 'personal affairs' to records concerning 'personal information' and to remove requirements to specify the 'designation' of a person to whom inquiries should be made and to specify the 'address' at which applications should be lodged and to replace those with more generic requirements to specify the 'manner' in which inquiries should be made and the 'manner' in which applications should be lodged.

10—Substitution of section 13

This clause substitutes a new section as follows:

13—Applications for access to agencies' documents

This section updates the provision on applications to allow for electronic forms of communication and also—

makes it clear that applications that only identify the documents sought by date range will be taken to provide insufficient identifying information;

sets out special identification requirements for applications for access to documents concerning personal information of the applicant.

11—Amendment of section 14—Dealing with applications

Section 14 is amended to ensure that all determinations made in relation to an application are made by the accredited FOI officer, to clarify that an application is not taken to be received by an agency unless it complies with the requirements of section 13(1), to require certain information be given to applicants and to extend the time within which an application must be dealt with from the current 30 days to 45 days.

12—Amendment of section 14A—Extension of time limit

Section 14A is amended to allow (in addition to the existing grounds for an extension of time) an extension of time to be granted if the applicant consents to it or where the agency is dealing with an unusually high number of applications or where the agency is dealing with a number of related applications.

13—Insertion of section 14B

This clause inserts a new section dealing with an agency's obligation to undertake reasonable searches for documents that are the subject of an application.

14—Amendment of section 17—Agencies may require advance deposits

This clause requires additional information to be provided in a notice accompanying a request for an advance deposit and specifies that a request for an advance deposit is a determination for the purposes of the Act.

15—Amendment of section 18—Agencies may refuse to deal with certain applications

This clause provides a number of amendments aimed at clarifying the provision allowing an agency to refuse to deal with an application.

16—Insertion of section 18A

This clause inserts a new section empowering the Ombudsman, on the Ombudsman's own initiative or on the application of 1 or more agencies, to declare that a person is a vexatious applicant where—

the person has repeatedly made applications for access or external review (or both); and

the repeatedly made applications are an abuse of the right of access or made for a purpose other than to obtain access to information.

A determination under the provision will be reviewable by SACAT.

17—Amendment of section 19—Determination of applications

This amendment is consequential to the amendment to section 14 extending the time within which an application must be dealt with from the current 30 days to 45 days.

18—Insertion of section 19A

Various provisions of Schedule 1 provide that a document is exempt from disclosure if certain preconditions are satisfied and disclosure of the document would, on balance, be contrary to the public interest. Proposed new section 19A provides that for the purposes of that Schedule, disclosure of a document would, on balance, be contrary to the public interest if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

19—Amendment of section 20—Refusal of access

This clause amends the grounds for refusing access to a document to clarify that access may be refused if access to the document has previously been given to the applicant or if the document cannot be found or does not exist and to remove the current reference to documents created before 1 January 1987. In addition, proposed subsection (2) provides that an agency must refuse access to an exempt document referred to in Schedule 1 Part 1 (the restricted documents) and may refuse access to any other exempt document.

20—Amendment of section 22—Forms of access

Section 22 is amended to allow an agency delete out of scope information from a copy of a document provided to an applicant.

21—Amendment of section 23—Notices of determination

This clause makes minor changes to the information to be provided in a notice of determination. The name of the officer that made the determination will not have to be provided but the notice will have to state a designation for the officer who made (or directed) the determination and provide contact details for the agency. Also the notice must specify (in accordance with the regulations) the documents to which the application relates that are held by the agency.

22—Amendment of section 25—Documents affecting inter-governmental or local governmental relations

This clause applies section 25 to a document that contains matter concerning the affairs of any council (including one constituted under a law of another State) or any government (whether of Australia or elsewhere).

23—Amendment of section 26—Documents containing personal information

This clause amends section 26 to:

change references to information concerning the 'personal affairs' of a person to references to 'personal information' of a person;

only require consultation with the person where the nature of the personal information is such that it might be an exempt document by virtue of Schedule 1 clause 6;

disapply the notice requirement where you are unable to locate the person;

allow an agency to require that the applicant nominate a medical practitioner who will be given access to the information where the agency has a reasonable expectation that disclosure of the information to the applicant would have an adverse effect on the physical or mental health, or the emotional state, of the applicant;

provide for the situation where the personal information relates to a child.

24—Insertion of Part 3 Division 2A

This clause inserts a new Division on disclosure logs as follows:

Division 2A—Disclosure logs

28A—Requirement for disclosure log

Agencies will be required to keep a disclosure log (in accordance with requirements specified in the section) of information about applications made to the agency where access to documents is provided if the agency considers that such information may be of interest to other members of the public.

28B—Required information about applications

This section sets out information that is to be recorded in a disclosure log.

28C—Objections

This section provides for the making of objections to the inclusion of information concerning an application in an agency's disclosure log.

25—Amendment of section 29—Internal review

This clause:

clarifies when an application for review of a deemed determination can be lodged;

requires written confirmation of the receipt of an application for review;

specifies that a review cannot be conducted by the person who made the determination that is the subject of the review;

changes the period for a deemed confirmation on review from 14 days to 20 days, with the possibility of an extension of that period in specified circumstances;

makes it clear that nothing prevents the agency making a determination to give access to a document the subject of an application for a review after the period within which the agency was required to deal with the application for review (and any such determination is to be taken to have been made under the Act).

26—Amendment of section 30—Right to apply for amendment of agencies' records

This clause amends section 30 to reflect the change in terminology from information concerning 'personal affairs' to 'personal information'.

27—Substitution of section 31

This clause substitutes section 31 as follows:

31—Applications for amendment of agencies' records

This section updates the provision on applications to allow for electronic forms of communication and also sets out identification requirements.

28—Amendment of section 32—Dealing with applications

Section 32 is amended to ensure that all determinations made in relation to an application are made by the accredited FOI officer, to require certain information be given to applicants and to extend the time within which an application must be dealt with from the current 30 days to 45 days.

29—Amendment of section 34—Determination of applications

This amendment is consequential to the amendment to section 32 extending the time within which an application must be dealt with from the current 30 days to 45 days.

30—Amendment of section 35—Refusal to amend records

This clause amends section 35 to make the existing grounds for refusing a request to amend records more objective, to add as grounds for refusal, that the application is frivolous or vexatious or is not made in good faith or that the agency has already decided a previous application made by the applicant that was substantially the same.

31—Amendment of section 36—Notices of determination

This clause makes minor changes to the information to be provided in a notice of determination. The name of the officer that made the determination will not have to be provided but the notice will have to state a designation for the officer who made (or directed) the determination and provide contact details for the agency. Also the notice must specify (in accordance with the regulations) the documents to which the application relates that are held by the agency.

32—Amendment of section 37—Notations to be added to records

A minor amendment is made to section 37 to allow for electronic lodgement of a notice.

33—Amendment of section 38—Internal review

This clause:

allows for electronic lodgement of an application for internal review;

clarifies when an application for review of a deemed determination can be lodged;

requires written confirmation of the receipt of an application for review;

specifies that a review cannot be conducted by the person who made the determination that is the subject of the review;

changes the period for a deemed confirmation on review from 14 days to 20 days.

34—Amendment of section 39—External review by Ombudsman

This clause makes changes to reflect the fact that the Ombudsman is now the only applicable review authority under the provision and gives the Ombudsman an additional power to require an agency to provide information relating to the manner in which it searched for, sorted or compiled documents or undertook consultations.

35—Amendment of section 40—Reviews by SACAT

These amendments:

allow an agency to seek a SACAT review of a determination by the Ombudsman that a document was not an exempt document (in addition to the existing right of review on a question of law);

allow persons other than an agency to seek a SACAT review of a determination by the Ombudsman on a review or under new section 18A;

require the Ombudsman to be notified of review proceedings (even though the Ombudsman is not a party to the proceedings) and to make written submissions to SACAT on application or at the request of SACAT;

clarify that nothing prevents an agency from making a determination to give access to a document the subject of review proceedings.

36—Substitution of section 47

A new service provision allows for service of any notices and documents under the Act (eg a copy of a determination by the Ombudsman under proposed new section 18A) and allows for service by email if an email address for service is provided.

37—Insertion of section 49A

This clause creates a new offence of directing an accredited FOI officer to make a decision or determination that the person knows, or ought reasonably to know, is not one that the officer should make or improperly influencing the making of a decision or determination by an accredited FOI officer. The maximum fine is $5,000.

38—Substitution of sections 50 and 51

This clause substitutes a new provision granting protecting from liability in respect of various new functions to be carried out under the measure. The existing provisions of the Act are limited to granting access to documents but the new provision will extend to things such as publishing in accordance with new section 18A and disclosure of information in a disclosure log.

39—Amendment of section 53—Fees and charges

This clause makes some clarifications to the fees and charges provision.

40—Amendment of section 55—Regulations

This clause brings the general regulation making power into line with more recent drafting practice.

41—Amendment of Schedule 1—Exempt documents

This clause amends Schedule 1 (exempt documents) to:

replace the existing exemptions relating to Cabinet and Executive Council documents;

provide an exemption for documents that would put at risk any endangered, vulnerable or rare species or any threatened species or threatened ecological community or rare items of cultural or scientific importance;

delete unnecessary exemptions;

provide an exemption for documents prepared for the purposes of an audit, examination or other statutory function required to be undertaken by the Auditor-General;

make other minor miscellaneous amendments.

42—Amendment of Schedule 2—Exempt agencies

Schedule 2 is sought to be amended:

to make the Office of Parliamentary Counsel an exempt agency in relation to information that would be privileged from production in legal proceedings on the ground of legal professional privilege. Such information is exempt under Schedule 1 in any case but, if the information is only subject to a Schedule 1 exemption and a request for access is made, OPC is still required to undertake searches for the documents and compile the documents for the Departmental accredited FOI officer to enable them to determine the application. This arrangement is inappropriate where the documents include privileged documents of non-government members of Parliament;

to update some references.

Schedule 1—Transitional provisions

1—Application of amendments

The Schedule sets out transitional provisions.

Debate adjourned on motion of Hon. S.K. Knoll