Submission on the Disclosure Log Discussion Paper - Office of the Australian Information Commissioner

Submission on the Disclosure Log Discussion Paper
By Rick Snell
Associate Professor
Law School
University of Tasmania
28 March 2011


http://www.oaic.gov.au/publications/papers.html

This submission contains no confidential material.

In general I am supportive of most of the suggestions made in this Discussion Paper but would like to focus my attention on some particular points.

Consultation questions

Q15. Should agencies and ministers adopt a practice of updating their disclosure log on a particular day each week or fortnight?

I see no need for agencies to be limited in this way.

Q16. What other steps should be adopted to ensure a consistent and suitable approach across government to disclosure log publication?

I listened with great interest to the comments made at the Information Law Conference by both agency personnel and journalists.

I have great sympathy for the case made by journalists, especially by Michael McKinnon, that the public interest in delaying general release by the Disclosure Log to enable requesting journalists to craft stories based on the released material, is relatively minor compared to the threat to the public interest in deterring or lessening the use by journalists of the Act.

In particular I note that a number of comments were made in side sessions, plenary events and in casual conversation as to how the 10 day discretion on disclosure logs would be deployed to the disadvantage of journalists by releasing the information very quickly.

I would suggest the Information Commissioner adopt a guideline whereby the applicant can make a request on whether any released information be delayed from general release up to the 10 day maximum period. The applicant making this request should justify where it is in the public interest for the Agency to delay updating the Log for this specified period.

Some applicants will be happy with immediate release, other applicants such as journalists, researchers or members of parliament or NGOs may have good reasons to have a period of exclusive access.

Where applicants do not specify a grace period then the Agency is free to publish at its discretion.

I would reject the suggestion that “Agencies and ministers could invite applicants to propose or negotiate the date of publication, provided this occurred within the ten working days stipulated in s 11C. The discretion would remain with the agency or minister to decide the actual date, but they would better understand any special concern of the applicant.” This option gives too much discretion to agencies and does nothing to prevent the manipulation of the timing to disadvantage particular applicants including, but not exclusively, journalists.

The alternative of allowing the applicant to nominate the grace period rewards and protects certain users and adds little extra burden or restrictions on agencies.

Q13. Is 12 months a reasonable period for agencies and ministers to make available, by website download or otherwise, information that is listed in a disclosure log register?

No this is far too short a time. For the initial period of the new reforms all Disclosure Logs should be available for a minimum of 2 years and then this issue should be re-examined in light of actual experience.

Q14. Should the disclosure log register indicate when information is likely to be removed from an agency’s or minister’s website, or the date on which information was in fact removed?

Yes.

Q12. What steps can be taken by agencies to make information in a disclosure log easily discoverable, understandable, machine-readable and accessible for members of the public?

At the minimum the information should be in searchable format.
Agencies should be required to index with searchable key terms.

Q7. Should all agencies and ministers adopt the same template for their disclosure log?

Yes.

Q8. Should a disclosure log contain the headings and information specified in the draft template annexed to this paper?

Yes

Q9. Should the disclosure log contain a summary of an FOI applicant’s request, whether the documents requested were provided in full or in part, and whether all information provided to the FOI applicant is made available under the disclosure log?

Yes

Q10. Should this information be provided in the disclosure log register or in some other manner (also see question 8 above)?

In the Disclosure Log or link to it.

Q11. Should it be open to an agency or minister to supplement a disclosure log entry with comment or explanation?

Yes