Australia: Queensland Lets The Sun Shine In - Sweeping Reforms To Information Access Announced

Key Point

• Queensland will have a new regime regulating the right to information by the middle of next year.

Queensland may be an hour behind during daylight saving time but the Queensland Government has got the jump on other governments by recently announcing that it will seek to implement most of the recommendations proposed by an independent review panel following a comprehensive review of Queensland's freedom of information laws released earlier this year.

The Queensland Premier, Ms Anna Bligh, had appointed an independent review panel in September 2007 to undertake the comprehensive review. In June 2008, following extensive consultations, the review panel provided the Queensland Government with a 400 page report, "The Right to Information - Reviewing Queensland's Freedom of Information Act", which made 141 recommendations to improve and modernise Queensland's freedom of information legislation.

Following consideration of the Report by the Queensland Government, Premier Bligh has announced that "the Queensland Government supports in full 116 of the Report's recommendations, and either partially or in principle supports another 23 recommendations". Only two recommendations are not supported by the Queensland Government.

We discuss some of the Report's recommendations and the Queensland Government's response below.

New name

The Queensland Government supports the review panel's recommendation that the Freedom of Information Act 1992 (Qld) be replaced by a new Act, the Right to Information Act. The title of the new Act will make the primary purpose of the new legislation clear.

Public interest test

The Queensland Government supports the review panel's recommendation that the public interest test, as used in the FOI Act, undergo a radical reform. The current Act contains three separate public interest tests. The review panel has recommended that the separate tests be consolidated into one test. The concept of public interest will be defined by a non-exhaustive list of the essential features of the public interest test to be set out in the new legislation.

Instead of having a variety of exemptions, including exemptions which incorporate a public interest test, an application for release of information will be subject to a two stage test. Information must be released unless, either:

• the matter is exempt; or

• its disclosure would, on balance, be contrary to the public interest.

The current exemptions which incorporate a public interest test for matters concerning operations of agencies and matters relating to deliberative process will no longer be exemptions. Instead they will be characterised as "harm factors" which are to be taken into account when considering whether or not the disclosure would be contrary to the public interest. A "Time and Harm Weighting Guide" will be provided as a schedule to the legislation. The guide will set out a detailed specification of particular harm factors, an indication of the weighting that might normally be associated with each harm factor and a guide as to the time any particular harm is likely to be relevant.

Conclusive certificates

The Queensland Government supports the review panel's recommendation that provisions allowing the Attorney-General to issue conclusive certificates under the FOI Act be removed.

Cabinet documents

The review panel recommended that the Premier, in consultation with the Cabinet secretariat, should decide weekly after Cabinet meetings, what Cabinet material should be released proactively. The Queensland Government supported that recommendation, indicating that it will commence proactive release of Cabinet information on a regular basis. The Queensland Government also accepted the review panel's recommendation that the new Act include a Cabinet exemption for material created for the purpose of consideration or deliberation of Cabinet. However, the Queensland Government has indicated that it will go beyond the recommendations in the Report and provide in the new Act that the cabinet exemption will lapse after a period of ten years. After that time, release of Cabinet material will be subject to the provisions of the new Act including the public interest test to be contained therein.

Promoting FOI

The Queensland Government supports the review panel's recommendation that the Information Commissioner should encourage larger agencies to increase the number of officers authorised and qualified to handle FOI matters. The Queensland Government has indicated that in the annual report cards on agency performance, the Information Commissioner will consider agencies' resourcing levels and, where appropriate, encourage agencies to increase the number of authorised and qualified officers.

Extending the reach of FOI

The Queensland Government supports in principle the review panel's recommendation that the new Act apply to all bodies that are established or funded by the government or are carrying out functions on behalf of government, unless it is in the public interest that they should not be covered. The Queensland Government has indicated that it will need to consider the overall public interest in extending FOI legislation to non-government organisations, particularly where the proportion of government funding received is low or the costs of compliance outweigh the advantages of participation or significantly compromise service delivery. The Queensland Government agrees that documents held by an agency in relation to the delivery of contracted functions should be subject to the new Act, but does not intend to deem documents of non-government organisations to be documents of an agency.

The Queensland Government has agreed with the review panel's recommendation that private bodies with public regulatory functions that would otherwise be required to be exercised by government should be subject to FOI in relation to the performance of those functions.

Interplay between FOI and Privacy

The terms of reference of the review panel did not include an examination of the Queensland privacy regime. Queensland does not currently have separate privacy legislation. State government agencies are subject to an administrative scheme which sets out principles for the management of personal information of individuals. The review panel noted that the Queensland privacy regime is subject to a separate review which is likely to be dependent on the outcome of the ALRC's review of the Commonwealth Privacy Act 1988.

The Queensland Government supports the review panel's recommendation that separate privacy legislation be enacted and that requests for access to, or amendment of, personal information be dealt with under the privacy legislation rather than the new Act. The Queensland Government also accepted the review panel's recommendation that a Privacy Commissioner be appointed to oversee the system providing for access and amendment rights for personal information.

Vexatious applicants

The Queensland Government supports the review panel's recommendation that the FOI Act be amended to include the following additional grounds for declaring a person vexatious:

• the application clearly does not have any serious purpose or value;

• the application is designed to cause disruption or annoyance;

• the application can otherwise fairly be characterised as obsessive or manifestly unreasonable.

Internal review

The Queensland Government supports the review panel's recommendation that internal review be retained in the new Act but that it should be optional.

Overhaul of FOI charges

The Report describes the current charging system as "a disaster". The Report recommends that there should be no charges for searching for, or retrieval of, documents, or for decision-making by FOI officers. Instead, the Report recommends that there should be a charge based on the number of full pages provided to an applicant which should be levied at the time the documents are ready for delivery.

The Queensland Government supports the recommendation in principle but has indicated that it is concerned that the model proposed could lead to unintended increased costs in many instances. It has indicated that it will consider options for an appropriate charging scheme that does not lead to significantly increased costs for applications.

Directing decision-maker to be an offence

The Queensland Government supports the recommendation of the review panel that a provision be included in the new Act making it an offence for an officer to direct an FOI decision-maker to make a decision that the decision-maker believes is not the decision required to be made under the new Act, or to direct an officer to act contrary to the requirements of the new Act.

Recommendations not supported

The Report recommended the repeal of sections 39(2) and 48, and schedule 1 of the FOI Act. Section 48 provides that matter is exempt matter if its disclosure is prohibited by an enactment mentioned in schedule 1 unless disclosure is required by a compelling reason in the public interest. In rejecting the recommended repeal of section 48 and schedule 1, the Queensland Government noted that schedule 1 provides a limited list of secrecy provisions in other legislation relating to the protection of the rights or safety of citizens. The Queensland Government rejected the recommended repeal of section 39(2) of the Act as the exemption for audit information provided by that provision is considered necessary to protect the confidentiality of information obtained during the course of audits and to maintain the integrity of the Queensland Audit Office's audit process.

The Queensland Government also rejected one of the recommendations relating to the provision of facilities by the Information Commissioner for requestors to access information. The Government supported in principle the recommendation that the Information Commissioner make available a space for requestors to access information made available by agencies where agencies are unable to provide access, or where it would be more convenient for the requestor to view the information in the office of the Information Commissioner. However, it indicated that agencies should provide facilities for access unless an agency is unable to provide accommodation for access and alternative access cannot be arranged. Only in those circumstances should the Information Commissioner provide the facilities. However, the Queensland Government refused to support the recommendation that the Information Commissioner should charge for providing facilities for access, stating that use of such facilities should be provided free of charge to facilitate access to information.

Where to from here?

The Queensland Government has indicated in its response to the Report that it will develop a new Right to Information Bill and a Privacy Bill, for release as consultation drafts by December 2008 and that following the consultation process, it is proposed that the bills be introduced into Parliament in the first half of 2009, with a view to commencement of the legislation by mid-2009.

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