Freedom of Information (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 16 June 2020.)

The Hon. S.C. MULLIGHAN (Lee) (12:09): We were previously discussing this bill and I had, in my contribution thus far, placed onto the record my understanding of the submissions from the media and the Law Society. Given that the Office of the Ombudsman is such an important entity with regard to the freedom of information legislation, it would be helpful, in my view, for the house to understand the Ombudsman's view of the act and the Ombudsman's view of any recommendations.

I do not have a copy of a submission from the Ombudsman in the event that the current Ombudsman has made one to the government for the purposes of the drafting of this bill. We would be very interested to hear from the government and from the Deputy Premier what discussions or what feedback or what contribution to the consultation process the current Ombudsman may have made to the formulation of this bill because there are those of us who are frequent applicants under the terms of the Freedom of Information Act who seek his external adjudication of determinations from time to time.

Understanding his current views would be very helpful for us because, aside from those people who are practised applicants, and aside from those officers within government who are responsible for formulating and making the determinations, it is certainly the Ombudsman who would have the most frequent and thorough understanding of the act and also how the act is in practice being applied in making determinations on applications.

But what we do have access to—and I think the Deputy Premier made reference to this in her remarks—is the report from the previous ombudsman, which was made in May 2014, which was an audit of the state government department's implementation of the Freedom of Information Act as it stands. Notwithstanding that this report is six or so years old now, I think that it is reasonable to assume that there probably would not be too much daylight between what the former ombudsman saw as current practices, good or bad, in making determinations under the act and perhaps recommendations for how the act can be improved.

In my earlier contribution, I questioned why some of the bill's proposed amendments to the act were being made, particularly with regard to the proposed amendments to the act's objects. I note that it seems the government has taken some of the wording from the previous ombudsman's recommendations into account when formulating the bill when it comes to changing the objects of the act. I am sure that will be something we will have a longer discussion on when it comes to the committee stage. Some examples of other recommendations that the previous ombudsman made in his 2014 report include:

The Act should expressly clarify that an accredited FOI officer (or the principal officer) must make the agency's initial determination.

…agencies must ensure they have appropriate designations by the principal officer of their FOI staff who have undergone training approved by the Minister.

And also:

Accredited FOI officers of the agencies should undertake refresher training on a 12 monthly basis, as a matter of policy.

That I think is important because, when an applicant receives a determination, which they believe is not in accordance with the provisions of the act, they seek an internal review, and they still remain unsatisfied with the outcome of the internal review and choose to pursue it with an external review through the Ombudsman. It has certainly been my observation and perspective in some of these matters that agencies continue to be found to have incorrectly applied certain elements of the FOI Act, and those external reviews have varied the agencies' determinations in those regards. I will speak in a bit more detail about that a little later.

For example, if you have had the unlucky experience, as I have, of submitting a number of applications to the Department of Planning, Transport and Infrastructure, or even to the Minister for Transport and Infrastructure's office, quite often determinations will come back with all names and email addresses redacted from documents that are released, and it is claimed by the officer making the determination that that is consistent with the provisions of the current act that the personal affairs of an individual should not be released in documents.

It is a little ridiculous, I am sure you can agree, Deputy Speaker, when the names of departmental staff, the names of ministerial staff are redacted from those documents, even though they are openly and freely disclosed in other documents, such as government gazettal notices or agency annual reports, and so on. It may seem a trifling matter, but it demonstrates that FOI staff are going, in some cases, to inordinate lengths and expending quite a significant amount of time to incorrectly redact basic information from documents in contravention of the act.

Putting aside the fact that it is a contravention of the act, and has been found to be so on a number of occasions by the Ombudsman, it is also not consistent with the objects of the current act, and that is to encourage disclosure of information. What it means in practice is that an amount of time, which contributes usually to the breaching of the current act's 30-day time period, is dedicated to this futile endeavour, which also happens to be contrary to the current legislation.

There have also been examples where determinations have been appealed to external review to the Ombudsman, where really any agency advice, even within the agency or from the agency to the minister, was claimed to be exempt from release because the documents contained information that was a matter of opinion, or that was in some form a draft, and attempting to use the provisions of the act to exclude what would otherwise be regarded as routine minutes and correspondence, either within the agency or from the agency to the minister, and clearly designed to frustrate attempts to gain access to government documents, in contravention of the act.

Then there is perhaps the most contentious part of all of this—and certainly my experience, and I am not sure whether it is the experience of other members of parliament, members of the public or the media—but the part relating to the application of the schedule 1 provisions, which preclude access to certain types of cabinet documents. It has seen a proliferation in recent years and, I am happy to admit, presumably under the tenure of the former government as well. Documents, whether they are in any form cabinet documents, or not, are marked, perhaps with a header or a footer or with a watermark, or similar, as being cabinet documents when they are clearly not.

They even may be extended to emails between departmental staff well before or well after the period of time of what they perceive to be a relevant document and claiming that merely with the addition of the marking of those emails or documents with the expression 'Sensitive SA cabinet' or similar these are exempt documents. That is clearly designed not necessarily to designate for internal filing purposes or document management purposes that these are cabinet documents but to try to preclude the release of these documents from any applications made under the FOI legislation.

When an applicant tests these determinations, through an internal review and subsequently through an external review, and the Ombudsman finds that those parts of the FOI Act were incorrectly applied to the determination, that in fact they were not cabinet documents, and in some detail, to the Ombudsman's credit, sets out in clear and specific legal terms why he believes they are not legitimately cabinet documents and provides a copy of his determination to both the applicant and the agency, it is not unusual for that same agency to receive multiple external review determinations from the Ombudsman finding that officers have incorrectly used those parts of the act.

You might think that would cause a principal officer or even that officer themselves to pause and think about whether they should consider changing the way in which they make the determinations with these types of documents when applications come in. In my experience, unfortunately it does not. The practice is continued, which further serves not only to frustrate the applicant getting what would be their legal right of access to these documents but also to cause a headache for the agency, as they are asked for an internal review by the applicant, and then a more significant headache for the Ombudsman, when usually the internal review merely confirms the initial determination of the agency.

Deputy Speaker, you may well be familiar with an ombudsman's external review, but they tend to be somewhere in the order of, say, 12, 15 to 20 pages long. They are time consuming for the Ombudsman to put together, merely to have to make similar sorts of findings to the same agency about similar sorts of documents for the same applicant. Training of FOI officers is something that in my view should be pursued by government departments. I am not saying it does not happen at all because, of course, by being accredited clearly there must be some induction or training and, in some form or another, certification that those staff have gone through a process in which they are required to become familiar with the requirements of the act and can demonstrate that they can apply those requirements.

That might perhaps also be an opportune time to point out that for many agencies, particularly larger agencies, the role of an FOI officer is certainly not one sought out by a lot of staff. It is considered an onerous, burdensome, repetitive and, perhaps in the view of some people, tedious role to have to respond to applications for documents, particularly when they might find themselves in receipt of applications from someone they regard as being persistent or unwilling at face value to accept the determinations which are made perhaps with regard to documents which are determined to be cabinet documents when in fact they may not be.

I also raised in my earlier contribution the inherent conflict which arises when a principal officer is also a minister, and the minister is making determinations about applications for documents held by that minister's office. You can see the incentive for a minister who believes that they might be embarrassed, or they might be releasing information that they otherwise would prefer not to see released to determine those matters in favour of themselves rather than the applicant clearly against the objects of the act.

So, if we are to see a change to that as we propose in one of our amendments—or a couple of our amendments, I think—then the chief executive to whom the minister must delegate that role, and then the staff that that chief executive might delegate subsequently that role to, to other staff in their agency, should have (a) training and (b) regular refresher training. I quote:

The status of the officer required to conduct an internal review should be clarified in the Act, as well as the principal officer's ability to delegate their power.

Now, that is something that we will certainly be talking about further during the committee stage, because, on my reading of the bill, that is not something which is specifically provided for. I continue:

The Act should require agencies to promptly acknowledge receipt of an access application and an application for internal review. Both acknowledgements should inform the applicant of the relevant review and appeal rights and timelines, particularly in the event of the agency failing to make an active determination within the statutory time frames.

I am pleased to say that, in my experience, that is something that does already seem to happen. I am not sure whether it happens across all government agencies, but certainly for the agencies to which I have made applications that seems to be a matter of policy. I continue:

The Act should allow applicants and agencies to negotiate extensions of time to deal with an access application both at their initial determination and internal review level. However, applicants' rights of review and appeal must be preserved.

This is an important area, because this is an area where there is already this practice within agencies where an FOI officer may contact an applicant and say, 'Look, we're not confident we're going to meet the 30-day time line, and we realise that that would trigger a failure to determine under the act. However, it's my anticipation, given my current workload and where your application is at in the batting order, that we'll probably get to it in just a few more weeks. Can you wait that long? Do you believe it's urgent?' etc., and thereby negotiate that outcome.

Even if that outcome is negotiated, if the agency breaches it—say, for example, they give an indication that, 'Well, we can't do it in 30 days, but we're pretty confident we can do it in 60 days,' if the applicant thinks, 'Hey, it's been 90 days or longer and they still haven't got back to me,' then they are still able to trigger those internal review rights as if the time frame was only 30 days. I think that is important.

It is a matter of practice at the moment, and I think it is a reasonable matter of practice. Of course, the necessity for maintaining the 30 days is important not so much for applicants, like members of parliament who are seeking to better understand why certain policy decisions are made, but you can see, casting your mind back, Deputy Speaker, to my very much earlier comments about one of the reasons why we have a Freedom of Information Act, and that is to allow citizens to have access to information that the government holds about them, and in particular to make corrections to incorrect information that the government might hold about them. That might be something that is indeed urgent for a citizen to be able to remedy, and maintaining that 30 days in that regard is important. The Ombudsman goes on to recommend:

agencies must refund the fees to an applicant if they exceed the initial determination or internal review time limitations under the Act

That is something which is not countenanced in the Deputy Premier's bill completely—it does so partially but not completely. The recommendation continues:

agencies have a discretion to impose a ceiling of 40 hours for processing access applications following consultation with the applicant.

That is something that will be discussed at some length during the committee stage of the bill. The next recommendation provides:

The Act should allow an external review authority [i.e. the Ombudsman] to remit deemed or inadequate determinations back to the agency for consideration.

I understand why the Ombudsman would seek to do that—because it would relieve the Ombudsman of the burden of having to essentially do the agencies' work in making a determination at the end of the external review process. I can also see why it would send a clear message to an agency that they have basically been seen not to apply the act accurately. Hopefully, that would be a sufficient goad to action to determine these matters properly. The next recommendation states:

The Act should be updated to recognise technological advancements in electronic communications and storage, and modern records management practices.

That is something the government's bill does seek to do. You might scratch your head, Deputy Speaker, wondering why the government has placed on file amendments to countenance the government's bill in that regard. I think it is because we should be very careful that we are providing the most open-ended definition of what constitutes a document.

By trying to be modern and contemporary in our wording of the act, we may in fact have the opposite effect to what the Ombudsman seeks here. Rather than throwing the parliament's arms as widely as possible around all different types and manner of documents, we may be inadvertently narrowing the scope, just as when the act was initially mooted in the 1980s, let alone passed at the very beginning of the 1990s.

Certainly, things have moved on in the last 30 to 40 years in how the government creates, compiles and stores documents. Of course, I agree with the government that we need to think through very carefully how we recognise those advances. This is no longer such an administrative task so reliant on paper—certainly, many of the documents that are created are electronic, and even if they are paper documents they are transmitted electronically or converted to electronic form for ease and efficiency of storage.

I understand all those points, but who is to say how documents will be stored in the future? If we go to lengths to specify the electronic nature of documents, then it is the concern of the opposition that we may not be casting as broad a definition as the current act, also in operation with State Records Act, does at the moment. We may be inadvertently casting some documents aside from being considered as documents suitable for release. The next recommendation of the Ombudsman is another difficult one for the parliament to deal with, that is:

The Act should include a provision similar to section 26 of the Freedom of Information Act 1992 (WA), that an agency can determine to refuse access on the basis that 'documents cannot be found or do not exist'.

That, understandably, would be a very contentious point for us to consider. You only need to cast your mind back to 2013 when the horrific sexual assault occurred of a student at Largs Bay Primary School, in the former designation of the seat of Lee, when the opposition raised many questions and concerns over what the Premier at the time new about those allegations.

There was an extraordinary demand, firstly, and effort subsequently—demand of the opposition and then effort of the Department of the Premier and Cabinet—to try to ascertain whether there was any document or any communication that might have informed the Premier at the time that this incident had occurred in 2013.

I think I am correct in saying this: it went as far as requiring the telecommunications company to try to recreate transmissions that were made to government storage servers because they are refreshed on a regular basis—I think every 24 hours—to make sure that documents are captured and that nothing had inadvertently been lost. So you can see that a provision recommended by the Ombudsman in that regard may serve to undermine some people's confidence that, merely because a search by an FOI officer has been unable to locate or uncover a document, the agency can then refuse access to that document on the basis that it cannot be found or does not exist.

Put yourself in the shoes of—again, that example that I use—a member of the community, a citizen, who is seeking to get access to some older documents for the purposes of trying to ascertain what information the government is holding about them or trying to do that for the purpose of correcting that information that the government might hold about them. If that information is, say, contained in a document that the applicant suspects is maybe 10 years old, it may not be the case that agencies are expected to or required to maintain storage of those documents on their premises, particularly their premises of the normal course of their business.

It may be that they have a policy that, say, after five years or after seven years or similar, those documents are refiled in a manner which can see them located or transported to another storage location, perhaps another physical location some distance away from where the accredited FOI officer is searching for those documents.

Merely because the nature of the search that officer has undertaken has not been able to establish the existence of the document, because they have searched an area which is approximate to their place of work, or they have just gone into the document management system which is currently in use by the agency, you can easily see how documents may not be found or located.

To then advise an applicant that that document that has been sought does not exist may not only be incorrect but, in the case of that citizen who is merely seeking to ascertain what information the government holds about them, that could be for many reasons disheartening, dispiriting or even distressing. So that is a vexed issue for us to consider in receiving the Ombudsman's recommendations in that regard. The next recommendation states:

Chief Executives of the agencies should issue a written directive to all of their staff about the need for them to respond promptly and thoroughly to FOI internal searches for documents.

The directive should remind staff of their compliance obligations with the South Australian Public Sector Code of Ethics and the State Records Act 1997.

I guess that is an adjunct to what I was just talking about earlier: how thoroughly does an FOI officer conduct a search for documents? Certainly, when I worked in government it was usual for an FOI officer to say, 'We have received an application for documents. These are the terms of the application. If you believe you have any documents that may meet the terms of that application, could you please advise accordingly, and could you, if possible, provide access to those documents.'

That may mean, for example, that you think, 'Did I get an email about that or similar?' That is quite easily searchable for staff within a public sector agency, but in the context of somebody having a recollection that at some point they might have seen a minute or a letter or a piece of correspondence about it but cannot recall any further examples of that, you can see how easily a person's confidence in the thoroughness of the search can be either confirmed by somebody who is very rigorous, or undermined if really the only search is tapping some search terms into the document management system and/or sending out an email to staff that that officer deems to be relevant to the search terms.

The thoroughness of the search for documents is a key concern for applicants and should be a key concern for us. Earlier we touched on the modernisation of the creation of documents and the storage of documents, and there is the modernisation of types of documents as well. For example, it is not uncommon to request access to documents from one agency and the documents are searched for and perhaps located but are merely minutes or letters or other hard copy forms of documents that come back.

A search by another agency under similar terms might discover text messages between officers within an agency and that, of course, raises questions such as: was the search that was done by the first agency as thorough as the one done by the second agency? Are text messages considered in scope? Are they records? You can certainly construct very robust arguments under the provisions of the State Records Act that whether you have scribbled on a post-it note or whether you have flipped off a WhatsApp message to a colleague, that constitutes a document. Are they searched for? Are they discovered, let alone are they assessed as to whether they should be released? I think it is clear that there is varying application about whether that occurs between different agencies.

The next recommendation states that as a matter of policy senior management in the agencies should be required to sign off on the searches undertaken by agency staff in response to an internal request for documents from FOI officers. That is a very specific recommendation, but what I understand lies beneath that recommendation is a requirement that senior staff of the agency are to play a role in ensuring that the conduct of the FOI officers has been as robust as it should be and, as far as they can be concerned, in accordance with the provisions of the act. While the opposition's amendments do not quite go so far as the Ombudsman recommends here, we do try to insert some requirement that senior staff of agencies—in particular, executive level staff of agencies—must play a greater role in the determination of applications.

The next recommendation perhaps harks back to the previous matter that we were discussing, and that is that in the event of being unable to locate requested documents under the act, agencies need to be able to demonstrate to applicants in their determination that they have conducted reasonable and sufficient searches showing how, when and where searches were conducted, and the records management systems and databases searched, along with a relevant description of the contents of these databases and any search terms used.

That is an onerous requirement, that the Ombudsman suggests should be replaced, on FOI officers. I am sorry to hackney this, but if you, again, put yourself in the shoes of a citizen wanting to understand what information is being held about them by the government, or if you want to do that for the purposes of ensuring that that information is correct, you would want to be sure that the searches conducted by the agency have been as thorough as they possibly can be and have been conducted as accurately as possible, because you would be very disappointed, if not distressed, if a cursory search of documents and government databases had occurred or if a search had been undertaken and the search terms used were incorrect.

The Deputy Premier, I am sure, does not suffer this as much as I do, but it is a surprise and it is infrequent when, for example, I receive correspondence where my last name is spelt correctly. For somebody who has a particular or peculiar spelling of their name, if that was the basis of a search used for documents, it might easily demonstrate how documents about that citizen or that individual could be missed. So the requirement for a determination to set out exactly how those searches were done and according to, for example in using electronic databases, which search terms were used I think would be very important to people as well, but I do understand that that could be very, very onerous.

There is I will not say a form letter for agencies in responding to FOI applications, but the responses to applicants tend to be of very similar terms, and I can imagine how that one or two page letter, with a schedule, might easily become a very extensive, particular and unique piece of correspondence if that obligation was placed on them, but it is an important issue nonetheless.

I certainly do not have this experience, but perhaps the Deputy Premier and the member for Heysen do: in the event that in their previous lives and their other occupations they were seeking discovery of documents, I am sure that they would have expected that not only thorough searches had happened but that they were able to understand exactly how those searches were conducted so that in the pursuit of the subsequent court proceedings they felt that they had access to everything that was required and that enabled them to represent their clients appropriately. The report recommends:

The agencies should develop an information disclosure policy highlighting, in the context of the objects and intent of the FOI Act:

their discretion to give access even if a requested document is exempt

the fact that merely because a document might satisfy an exemption does not mean that access to the document must be refused.

It is very rare and, in fact, in my case I think it is unprecedented to receive access to a document that has otherwise been deemed as one exempt under the terms of the act. I certainly do not recall—in fact, I am sorry; now that I say that, I can think of one instance. But it is almost never the case that an applicant receives documents which are deemed as exempt.

The practice of an FOI officer, in my experience, has been to do a search for documents, to receive the results of that search, to sift through those to see which documents might meet the exemptions provided for under the act, to hold those documents back and to release the remainder of the documents or to make some redactions to parts of documents which might satisfy an exemption under the act.

The exception to that practice that I cast my mind to is the request for correspondence I had made of the current Minister for Transport and Infrastructure. I sought access to the correspondence that he had received on federal budget night in 2018, not just the correspondence that he received from his federal counterpart, the federal Minister for Infrastructure, but in particular the large document and spreadsheet that is attached to that document. That large document and spreadsheet set out in very specific and granular detail every program and initiative under that portfolio for which the federal government is providing funds to the state government and in which financial year those funds are to be provided.

Naturally, I was interested in that because in May 2018, only a relatively small handful of weeks after the last state election, the state government was claiming that they had been awarded $1.4 billion in infrastructure funding for the next stages of the South Road upgrade. That quickly did not seem to be correct because media interviews given by federal ministers, including the Prime Minister, the Treasurer and the federal infrastructure minister, did not quite accord with the comments being made publicly by state government ministers about when those moneys were to be received.

As we subsequently found out, rather than $1.4 billion being provided by the federal government in the budget, $144 million was being provided in the federal budget, with the balance of more than $1.2 billion being promised at some point over the next 10 years but beyond the forward estimates. I was keen to get access to that document from the federal infrastructure minister because that would demonstrate whether or not we were being given the full and accurate details of the federal government's funding commitment to South Road.

As it turns out, I was given access to that document eventually, after I had appealed the matter to an external review of the Ombudsman. I was given access to that document after the release of the subsequent year's federal budget and also the further claim made that, rather than $1.4 billion being provided for South Road, $2.5 billion was now being provided for the upgrade of South Road.

Rather than initially claiming, as it did in the initial determination and then in the internal review of that determination, that these documents should be exempt because they constituted correspondence between the commonwealth government and the state government, and that there are exemptions in the act that apply to those documents, the agency took the view that, 'Oh well, due to the effluxion of time, you may as well have access to it now because it's out of date.'

That event in itself raises all sorts of questions about whether the agency and its conduct in determining that FOI application does satisfy the objects of the act, that is, to favour disclosure of information, or whether instead, rather than first considering the objects of the act they were first considering which exemption could be applied by the act to prevent disclosure of information. That is, unfortunately, a common way in which determinations are made by the government. There are many other recommendations from the Ombudsman. Following on from that:

The Act should expressly provide that nothing prevents an agency making a determination to give access to an exempt document.

The circumstances under which that might happen would be of interest, I think, particularly during the committee stage, about whether the government agrees in that regard with the Ombudsman and to whom they are seeking to provide an improvement in the act, whether it is to frequent flyers under the act, members of parliament, or whether it is to individuals or to everyone. A further recommendation is that:

The act should be amended to:

lessen the number of exemption provisions

provide that information must be disclosed unless, on balance, disclosure would be counter to the public interest

expressly direct agencies to consider the objects and discretions in the act before applying exemption provisions.

That is interesting, because I contend that many of the amendments the government proposes to the act do not really favour disclosure of more documents or improve the ease of access to documents, that they in fact provide a greater ability for agencies to consider the documents exempt. That finds itself as early on as the proposed amendments to the objects of the act, and that is something we will certainly speak about further in the committee stage of the bill. Furthermore:

The act should provide that a schedule of documents must be developed to accompany a notice of determination.

In my experience, that is something that usually does happen, but the quality and the detail of the schedule are variable. In some instances, there will be a very basic description of the document; indeed, it might just be called a document. It might not be called a letter or an email or a cabinet submission or a text message or some other form of communication; it might just say 'document'. It might list the date the document was created and then it might show whether that document is to be released, refused or partially released.

Some other agencies go into quite some detail. They would not only show the date of the document but also more accurately describe the document, the type of document. They might even provide a title of a document if one exists and, in some instances—not quite so commonly—if not the author themselves, then the designation of the author as well as whether it is to be released, refused access to or partially released. That is something the government, across all agencies, would do well to standardise, preferably in favour of making those schedules more detailed rather than less.

What it does is provide some comfort as to whether or not the determination is likely to be accurate in the mind of the applicant. If a document is just described as a document when it is, in fact, a cabinet submission, and the remainder of the schedule says that access to it is refused, you think, 'Why is access to this document being refused?' If it is set out as a cabinet submission, then you think, 'Fair cop, it's a cabinet submission and I can understand why we wouldn't get access to that, given the provisions of the act.'

It makes it very difficult for an applicant who seeks an internal review, let alone an external review, of a determination when there is insufficient description of the document in that schedule, even to the point when the Ombudsman is considering an external review and makes a provisional determination, and provides that provisional determination to the applicant as well as to the agency concerned. The applicant is in no real better place to judge about whether the Ombudsman has made or proposes to make an accurate determination about the release or otherwise of that document because we do not know the nature of the document, as it has not been sufficiently described.

While an agency might provide the actual documents to the Ombudsman so that the Ombudsman can make an accurate determination, the applicant is none the wiser. I understand how this is tricky because you cannot provide those documents to the applicant so that they can assess what they are for the purposes of the external review. I seek leave to continue my comments at another time.

Leave granted; debate adjourned.

Sitting suspended from 12:59 to 14:00.