Australia: New era for FOI: benefits and risks for business

Publications and News
Last Updated: 18 November 2010
Article by Sally Sheppard

Partner Sally Sheppard explains to Boardroom Radio how business will be affected by the changes to freedom of information.

Click here to listen to the interview.

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DAVID BUSHBY We are speaking with Sally Sheppard. She is a partner in the Dispute Resolution Group at Clayton Utz in Melbourne. A warm welcome to you Sally.
SALLY SHEPPARD Thanks David, nice to be with you.
DAVID BUSHBY Sally, freedom of information has just entered a new era of transparency with new laws making it cheaper and easier to access government information. With a new independent FOI body set up to enforce compliance with these new laws, the concept of more open government looks set to become a reality.

David that's certainly the intention of these reforms. Most of the reforms have come into force from 1 November this year although a few will come into force next year. There is an awful lot of change that the Government has brought about, but the really critical things I think are, first, the introduction of an information publication scheme for each department and agency. This is going to mean that each agency and department has got to be very proactive about the sort of information that is just out there for members of the public without the need to make an FOI request.

The second critical thing is the creation of a new Office of the Australian Information Commissioner to oversee these reforms and make sure that this culture of more openness actually translates from the legislation into practicality. There is the creation of a new conditionally exempt category of documents which will be disclosed unless there is a public interest reason not to. The restructuring of the merits review process is designed to streamline FOI applications, helped by the fact that charges are going to be substantially reduced and agencies will be penalised if they don't respond quickly in terms of cost.

DAVID BUSHBY And Sally I imagine the business sector would be very eager to sift through some of the thought processes behind the decisions taken by the likes of the ATO and Treasury, for example.

David I think they will and I think one of the early examples of how that might work and be of interest to business is the way the Government released the Red Book after the last election which is not something that has been done before.

The sort of information that people are likely to get from the ATO and from Treasury as a result of the information publication scheme that has come in under the new Act could I think be very valuable for businesses trying to work out what direction an agency like the Tax Office is taking on a particular topic.

The obligation that all of the agencies will have to proactively publish information is a great deal broader it was under the old legislation and the things I think that would be of particular interest to business come under the category of an agency's operational information, which is the information that an agency uses to assist it to perform or exercise its functions or powers in making decisions or recommendations affecting members of the public - so rules, guidelines practices, precedents, those sorts of things. I think business will be able to draw a lot of guidance from how an agency is thinking and what direction its policy thoughts might be taking by looking at those sorts of documents which will be released.

DAVID BUSHBY Well it seems like there are certainly some benefits for business, but on the other hand businesses providing services to Government and providing services on behalf of the Government may hold documents that are now subject to FOI applications.

That's exactly right and in fact organisations that enter into contracts with the Commonwealth after 1 November this year will see that there is going to be a new provision in those contracts which specifically makes it easier for documents that that service provider holds to be produced in response to an FOI request. So that's something that businesses will need to be focused on.

I think businesses will also need to keep in mind that with this proactive culture of disclosure those businesses that provide services for Government might find their documents being proactively included in part of an agency's information publication scheme. So being aware of that, before documents are given to Government or being aware of it in the context of a new contract we know that this sort of information is going to be disclosed, is going to be important.

There are still going be exemptions for commercially sensitive information but I think that the area in which business needs to be particularly careful area is around performance of service contracts to the Government and the way in which those services are performed. I can see competitors being very interested in FOI requests in relation to how a particular service is being provided, whether the contractors have met their KPIs, whether there have been complaints, for example, by the people to whom the service has been provided. That sort of information might be very interesting to a competitor next time that service comes up for tender.

DAVID BUSHBY Indeed, some very interesting insights. We will leave it there for now. Thank you again for your time today Sally.


That was Sally Sheppard, a partner in the Dispute Resolution Group at Clayton Utz in Melbourne.
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