Freedom of Information Laws Under Threat

Freedom of information laws (FOI) give individuals the ability to access various documents held by government agencies – subject to exceptions.

What does the legislation say?

FOI is governed in NSW by the Government Information (Public Access) Act 2009.

Section 5 of the Act provides a presumption in favour of disclosing documents unless there is an overriding public interest against disclosure.

The Commonwealth Freedom of Information Act 1982 gives Australians the right to access certain documents held by federal government bodies.

The aim of these laws is to promote transparency and participation in government – and to make governments more accountable for their actions.

This is intended, in turn, to promote better-informed decision-making; and increase scrutiny, discussion, comment and review of Government’s activities.

Under section 11 of the Act, anyone has the ability to obtain access to:

1. A document of any agency, except an exempt document; or

2. An official document of a Minister, other than an exempt document;

What are exempt documents?

A range of materials fall outside the requirement to disclose. They include:

1. Documents affecting national security, defence or international relations;

2. Cabinet documents;

3. Documents affecting enforcement of law and protection of public safety; for example, documents which could prejudice any criminal investigation or endanger the life or physical safety of someone;

4. Documents subject to legal professional privilege, which are communications between a client and their lawyer;

5. Documents disclosing trade secrets or commercially valuable information; and

6. Electoral rolls.

How much does it cost to make an application?

Ministers and government agencies are allowed to charge a fee for retrieving, copying and handing information over to you.

The fee is not meant to apply if the documents relate directly to you – but if they don’t, the applicable fees are:

1. Searching and retrieving documents ($15 per hour)

2. Decision making (the first five hours are free; after that $20 per hour)

3. Photocopying (10c per page)

4. Obtaining a transcript ($4.40 per page)

5. Supervised inspection ($6.25 per half hour)

6. Delivery (the cost of postage)

Agencies may decide to waive the fees, and the two most common reasons are financial hardship and where disclosure is in the public interest.

Criticism

For years, government agencies were criticised for unjustifiably refusing to disclose materials, delaying disclosure for long periods of time and charging exorbitant fees for searching and retrieving documents.

Such criticism led the Labor government to set up the Office of the Independent Commissioner in 2010.

The Office of the Information Commissioner

Among other things, it is the role of the Information Commissioner to oversee the integrity of FOI process, and to protect individuals against unjustified refusals, unwarranted delays and unfairly excessive costs.

But last year, the Abbott government cut funding to privacy and freedom of information by $10 million.

It also announced that it would disband the Office of Freedom of Information altogether.

Just last month, Commissioner John McMillan, who by then worked mainly from home after his office was disbanded, finally conceded defeat and accepted a job as NSW Ombudsman.

Although the office still technically exists, it is unlikely that the position of Commissioner will be refilled anytime soon.

Suppressing freedoms

In light of recent laws which prevent detention centre workers from speaking-out about human rights abuses, and laws which prohibit anyone from discussing anti-terrorism raids, and also laws against talking about the treatment of offshore boats dealt with under ‘Operation Sovereign Borders’, the government’s lack of enthusiasm for freedom of information is hardly surprising.

The President of the NSW Council for Civil Liberties, Stephen Blanks, believes that the government is:

“building a multi-level approach to stifle the ability for people to know what is really going on. Hand in hand with being secretive is a set of other measures designed to stifle free speech and stop people speaking out.”

So while the legislation may seem to promote a transparent and open system of publicly accountable government, the actions of the government itself tell a very different story.

Recent laws affecting freedom of speech, meta data retention laws and various other measures including the the disbanding of the Office of the Information Commissioner, all send a very clear message about the government’s agenda when it comes to transparency, accountability and individual freedoms.