Ben Dighton discusses the commencement of the second stage of legislative reform by the Federal Government concerning revisions to the Freedom of Information Act 1982 (Cth).

The commencement of the second stage of legislative reform by the Federal Government concerning revisions to the Freedom of Information Act 1982 (Cth) (the FOI Act) was announced with the release of two draft bills, the Information Commissioner Bill 2009 and the Freedom of Information Amendment (Reform) Bill 2009). Having received submissions from the public during the consultation period, it is expected that the Bills will be introduced into Parliament in late 2009.  

Proposed reforms which may be of current interest to individuals or businesses include:  

  • reformulation of the public interest test and the amendment of exemptions  
  • the establishment of the Office of the Information Commissioner
  • revised review process of decisions of Ministers and agencies relating to FOI requests.  

Public Interest Test and the Amendment of Exemptions  

The draft Bills contain the introduction of a new test to determine how a document that is the subject of an FOI request should be considered with regard to the public interest. One aspect of the test is its application to categories of documents that were previously exempt from disclosure. The test has been stated as follows:  

The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.

It is also proposed that the following factors are to be explicitly disregarded in using the public interest test:

  • Access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government  
  • Access to the document could result in • the applicant misinterpreting or misunderstanding the document  
  • The author of the document was (or is) • of high seniority within the agency
  • Access to the document could result in confusion or unnecessary debate.  

The public interest test is to be introduced as a qualifying factor in certain categories of documents being exempt from disclosure. The relevant exemptions for documents relating to personal privacy, business affairs, the national economy and research, amongst others, will now be classified as being “conditionally exempt” and will only retain that exemption if their disclosure would be contrary to the public interest. This proposal holds significant implications for individuals and businesses with regard to both the information potentially being made available for FOI requests, and conversely, the time and expense required in responding to FOI requests for information should an individual or business object to that disclosure.

Establishment of the Office of the Information Commissioner  

Both draft Bills stipulate guidelines for a new statutory office and officeholders to be created in a restructure of the authorities and processes relating to the management, use and disclosure of information by the Federal Government. The Office of the Information Commissioner is to be the public face of the new freedom of information regime and is intended to be the principal medium between government ministries and the public. It will also have an advisory role to Government Ministers and agencies regarding compliance with the new legislation and investigations under it. The Government has announced it envisages that this new structure will be functioning by January 2010.  

Revised Review Process  

Schedule 4 of the FOI Reform Bill amends Part VII of the FOI Act to alter the review process regarding the merits of an application made for access to information that has been refused by a Minister or agency. The amendments also authorise the Information Commissioner to make a determination on decisions made by a Minister or Agency relating to an FOI request. The review process as undertaken by the Commissioner is designed towards a more streamlined process rather than a formal structure based on attendance at hearings as would occur in a review before a body such as the Administrative Appeals Tribunal.