Wednesday, May 28, 2008

Tasmania's New Premier Keeping Options Open on FOI

Hansard 28 May 2008

Mr BARTLETT - I am clearly on the record as saying that I am open to looking at anything we can do as a new government to strengthen our democracy and strengthen trust in that democracy. I have already had some conversations with academics about the FOI laws in this State. I have been watching the debate closely in other States as well. I will be taking further advice about the act as it currently stands, its sense of longevity and how it might improved in the future.

I will have to chase these mysterious academics down to find out what they have been discussing. Although I do have a rain check to meet with the then Deputy Premier (now Premier) at some uncertain time in the future.

Have always been bemused at the Tasmanian Government's reluctance (both Liberal and ALP governments)to sit down and talk about FOI. The only time I got to make any direct representations was with Peter Patmore over lunch at the Vietnamese Kitchen in June 1999.

“Mr GROOM - Two years ago you said you were looking at a two-paged paper from Rick Snell and you said you were preparing legislation. That was in the Estimates of 1999. I have a little marker here. It was an interesting discussion then. You said you had had the meeting with Rick Snell from the university last week - this is in June 1999 - and you asked him what he thought might be appropriate. Funnily enough, he had it all typed out - two pages of it. You took it from him and 'that is going to be the subject of a discussion brief from my department'. You had had an expert, you said, saying where you should go with FOI and you indicated you were proceeding with that and would be making a public statement when you were in a position to give a considered response.


Mr GROOM - Are you able to give a considered response now, two years later?

Dr PATMORE - I think I have had sufficient time to give a considered response, yes. The major change was of course the conclusive certificates; we identified that before the election as one of the major issues. We have provided the Ombudsman with an additional $100 000 to assist. On administrative law, we expanded the Ombudsman's role and there is a plan for the creation of a new administrative appeals tribunal, a division of the Magistrates Court, so that is part of the Ombudsman's role, not necessarily with FOI, and I am currently looking at some aspects of FOI….. Tuesday June 5 Estimates Committee B (Patmore) Part 1 Pages 1-69.

In the end Dr Patmore got annoyed when the Greens introduced a private member's bill on conclusive certificates which the Government supported but which ended any more interest in FOI reform.

Since that time I have been engaged in giving advice and being sought for input from everywhere except 15 Murray Street Hobart.

Monday, May 26, 2008

Stateline Interview 23 May 2008

In a Stateline interview on the 23 May 2008 see transcript the Tasmanian Ombudsman, Simon Allston, and the Australia’s Right To Know Coalition spokesperson Lucinda Duckett supported a review and updating of Tasmania’s Freedom of Information laws.

The Tasmanian Ombudsman announced that it was only his limited resources that had prevented him from undertaking a similar review as the one announced by the NSW Ombudsman.

It was pleasing to see the ARTK making a very positive contribution to the debate.

The Tasmanian Government refused to comment on air but in a background document it took the line that there was little need to reform the Act because it was roughly similar to other state Acts.

However with the sudden resignation of the Premier Paul Lennon on 26th May the new Premier David Bartlett may decide to embrace a series of possible reforms. It would be certainly a major boost to Australian reform efforts if the Bligh reform program was not the only one being seriously considered. Indeed it might cause the WA and Victorian governments to reconsider both their proposals and approaches to reform.

Wednesday, May 14, 2008

Freedom of Information Reform in Tasmania - Some Initial Ideas

FoI Reforms in Tasmania

The 17 year old Freedom of Information Act was conceived and based upon ideas about government information that stretch back to the 1960s. Furthermore the original design and intent of the legislation was heavily modified before being accepted by the major political parties. It was then trimmed further prior to its commencement in late 1992 by the Liberal Government. Throughout the 1990s it was starved of funds and just managed to survive an attempt at a massive reduction in its scope and operation in the mid 1990s. At other times it was targeted by secret plans to subject it to a sunset clause after 2 years.

The Bacon and Lennon governments have co-existed with the legislation but have never been overly supportive or keen to reinvigorate the legislation.

Due largely to staffing restrictions the various Tasmanian Ombudsman since the mid 1990s have taken a very low keyed approach to both the interpretation and application of the Act and in taking any wider supervisory or quality control activity.

This restricted approach seems to be slowly changing under the current Ombudsman, Simon Allston.

What is needed?

A 3 month (maximum review) by the Tasmanian Law Reform Institute and/or the Tasmanian Administrative Review Advisory Committee:

The review could build upon the work and ideas of:

Queensland Independent Review Panel
• Discussion Paper January 2008
• Final Report (early June 2008)
Australian Law Reform Commission
• 1996 Report and current review
NSW Ombudsman review (current)
Changes made in WA, Vic and the Northern Territory Information Act

Developments in New Zealand, Canada, UK and USA

Some initial proposals

Information Commissioner created (could be Ombudsman) to cover FOI, Privacy and state records.

Information Commissioner to have ability to release exempt information in the public interest.

Information Commissioner to have the ability to order release of information.

Information Commissioner to carry out supervisory, advisory and training functions.

Information Commissioner and Ombudsman to be approved by both Houses of Parliament.

Freedom of information to be funded and administered as any other policy program.

Time period for Information Commissioner reviews to remain at 30 days.

Maximum time limits on applications to be progressively decreased from 30 days to”:
• 20 days
• 15 days
• 10 days

A once-off request for extension up to a maximum of 15 days

Agencies be required to process 50% of requests within 50% of the maximum deadline.

Cabinet documents to be more accessible.

Automatic release of cabinet documents after 10 years unless covered by another exemption.

Internal working documents to be automatically released after 5 years.

All exemptions subject to a public interest test.

Information released under FOI be made publically available on Agency websites.

The government to republish FOI Handbook.

Information Commissioner tpo publish determinations of FOI reviews.

Limits on vexatious applications.

Changing Objects section to include increased openness and progressive release of information as a specific aim of the Act.

Parliamentary oversight of FOI including a “dedicated focus on information as a dimension of all government activity”. Creation of a joint Accountability Committee.

A shift to pro-active or push model of release so that there is routine and active dissemination of information.

Optional internal review.

Internal review timeframe reduced from 14 days to 7 days.

Decisions by gazetted FOI officers under s.21 shall not be subject to any Agency approval process unless that process has been approved by the joint Accountability Committee.

Most importantly a cultural change that sees government transparency made an essential modus operandi of government and that there is an attitude to harvest the dividends of transparency.

Monday, May 12, 2008

FOI Reform in Australia - The current state of play

To listen to an interview conducted with Adrian Middeldorp, 3rd year B.Media student (University of Adelaide)Program MediaRites Radio Adelaide 101.5 FM Broadcast date: 13 May 2008 3:05pm (approx) on the current state of FOI reform at the Commonwealth level see

I have also written an opinion piece in The Australian on 25 April largely focusing on the NSW Ombudsman review but referring to the Commonwealth reform process.

Peter Timmins blog Open and Shut has been providing the best coverage of this issue.

My principle concern is not that Kevin Rudd will not deliver - his many statements in the last couple of weeks gives him no option. My concern is how he will deliver and the final size and nature of the package.

Prime Minister Rudd and his Special Minister of State John Faulkner have left the Australian Law Reform Commission review into FOI floundering with limited terms of reference granted to it by the previous Attorney-General. Whilst the President of the ALRC has indicated a willingness to exploit "the any other matter" clause in Ruddock's terms of reference clearly the ALRC wants a green light from the new government.

Therefore if the Prime Minister sticks to his timetable (end of 2008 or at the latest the 1st day of sitting in February 2009) it will be without the updated input of the ALRC,and to the best of my knowledge, with no input from anyone outside the ALP or the federal bureaucracy. Some like Michael McKinnon, the FOI Editor for the Seven Network, is hoping that the federal government is simply waiting for the Solomon Report for FOI Reform in Queeensland to be delivered (maybe by early June).

At least in Queensland Premier Anna Bligh has started to put into operation some of the possible changes that could emerge from the Solomon Report. The Queensland Whole-of-Government Response to Solomon's discussion paper indicated that, since Anna Bligh has become Premier, Cabinet documents ( about 500 pages) have been released on at least 3 occasions - 2 in response to FOI requests and 1 without the need for an FOI request.

It would be refreshing if the Rudd Government had shown the same willingness to dip their toes into the waters of greater transparency.

I find it difficult to understand why Senator Faulkner or any representatives of the government appear totally reluctant to engage in any dialogue about the shape,depth and design of any proposed reforms. Whilst the public service and Ministers are key stakeholders so are citizens. A lack of consultation may have had some merit if in the first days of the Rudd Government an FOI amendment bill had hit the floor of parliament and new FOI policy instructions had governed the way the first FOI requests of 2008 had been dealt with.