Bills

Freedom of Information (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 25 March 2016.)

The Hon. G.E. GAGO (21:06): I rise on behalf of the government to oppose this bill. The bill was introduced by the Hon. Mark Parnell on 25 March 2015. The bill would make miscellaneous amendments to the Freedom of Information Act based on the recommendations of the former South Australian ombudsman. The bill is identical to the one introduced by the Hon. Mark Parnell on 12 November 2014.

The bill would have adverse impacts on agency operations and staff, ministers and their staff, and the commissioner. There are also numerous issues with how the bill would operate in practice as well as legal issues with some provisions. The government's main concerns with the bill are as follows.

Clause 4 of the bill seeks to amend section 3 of the FOI Act by including reference to the principles of representative democracy in the objects section. It also seeks to amend section 3 of the FOI Act to acknowledge that documents held by the government are a public resource to be held on behalf of the public and managed for public purposes by the government.

Apart from supposedly offering guidance to agencies, it is not clear what clause 4 of the bill will achieve. The changes would not have much practical effect, given that 'participation' already covers activities such as commenting on and reviewing the making of laws and policies. It is uncertain that the changes made would enhance openness any more than the current objects do, particularly given that the principles of representative democracy may include maintaining confidentiality of some government information.

In addition, some documents held by the government are not necessarily a public resource that should be made available to the public. For example, medical records held by hospitals are not primarily a public resource though they may be used for public policy purposes. Victim impact statements are not a public resource, and so on. Documents held by the government may be used for public purposes, but this does not mean that the documents themselves are to be always available to the public.

Clause 5 of the bill inserts factors that should and should not be taken into account in determining whether disclosure of documents would, on the balance, be contrary to public interest. The bill lists 21 factors that must be taken into account in making an assessment about public interest. The bill then lists four factors that must not be taken into account.

The list of what should be taken into account is exceedingly long and unwieldy and is likely to cause confusion about how each factor is to be interpreted. The list will create an exhaustive set of circumstances that will act to redefine the term 'public interest' and prevent the holistic common law definition from being applied. It may be that the list achieves the exact opposite of what the honourable member wishes to do and restricts the definition of 'public interest' rather than allowing a broader view. Determining whether disclosure is contrary to public interest should become nothing more than a 'tick the box' exercise.

Clause 7 of the bill inserts a provision requiring an agency to refund any fee paid by the applicant if the agency fails to determine the application within 30 days after receiving the application or within the time extended. The clause also prohibits a fee from being charged in relation to granting access to that document. Clause 12 provides that the refund of fees also applies to the failure of an agency to determine an application for internal review within 14 days. It is important to note that agencies must manage their FOI responsibilities within a tight fiscal budgetary climate. Also, having served as a minister for many years, I am aware of the high level of FOIs that are simply quite—

The Hon. M.C. Parnell: Fishing expeditions?

The Hon. G.E. GAGO: They are just fishing. Many of them—not all—are fishing expeditions. They are quite broad and open and extraordinarily time-consuming and absorb enormous amounts of resources and efforts of public servants whose time and energy are better spent on other things. Requiring agencies to refund these fees will impose a budgetary burden and most likely exacerbate the delay.

These clauses would be impossible to operate in practice. It would not be possible to separate out what part of the fee was attributable to the granting of access to the document. For example, if there are eight documents and all are refused, but the Ombudsman determines that access be granted on one document, it will be very difficult to ascertain how much to remit, not to mention the huge administrative burden this would place on agencies.

Currently, the act allows an agency to refuse to deal with an application if it appears to the agency that the nature of the application is such that the work involved would substantially and unreasonably divert the agency's resources from their use by the agency in the exercise of its function. Clause 8 of the bill inserts a threshold in terms of what is considered to substantially or unreasonably divert the agency's resources from their use by the agency in the exercise of its functions.

The threshold imposed is that, if the application is dealt with by one person, it is likely to take more than 40 hours. Imposing such a threshold is arbitrary. It does not take into account the circumstances of a particular agency at the time. Also, it is not clear how the limit of 40 hours was determined. The clause takes no account of the size of the agencies and, as such, is poor policy. It is simply not possible to have a blanket threshold on what constitutes substantially and unreasonably diverting an agency's resources.

The current FOI Act is silent in respect of documents that agencies are unable to locate. Clause 9 of the bill inserts positions in respect of documents that cannot be found or do not exist. The issue with clause 9 is that it provides a disgruntled applicant whose application has been refused on the grounds covered by clause 9 a reasonably broad ground on which to seek a review: that all reasonable steps have not been taken to find the document. This could increase the number of applications for internal and external review and, as a consequence, have huge resource implications for agencies.

In addition, requiring agencies to describe their databases and records management systems may pose a security risk for government. Clause 10 of the bill directs the agency to act consistently with the objects of the FOI Act, contained in section 3, and the principles of administration of the FOI Act, contained in section 3A, when considering whether to refuse access to an exempt document. This proposed subclause is ineffectual. It is already a requirement that the principles of the act be observed and adhered to.

Clause 11 of the bill requires that the agency provide details in its notification to the applicant in respect of determinations made by, or at the direction of, the principal officer of the agency or at the direction of a person or body to which the principal officer is responsible, such as a minister. Details that are required include the name of that other person to whom the principal officer is responsible and the extent of that direction.

Determinations made under direction are extremely rare. When a principal officer turns his or her mind to an application at its initial stage, they are more likely to simply make a determination personally than to direct the FOI officer. Section 29(6) of the act clearly contemplates that a principal officer is permitted to make a determination. The government considers reform in this area to be unnecessary, given the rarity of the issue.

Clause 14 of the bill inserts offences for people who improperly direct or influence a decision of an FOI officer, with the maximum penalty being $5,000. It is not clear how the proposed offence provision will interact with section 29(6) of the FOI Act, which permits an agency's determination to be directed by its principal officer, which includes a minister. The Ombudsman does not recommend the repeal of section 29(6).

The government agrees that public access to information is an important bedrock of democracy. However, this bill does little to enhance public access and, as such, the government opposes this bill.

The Hon. A.L. McLACHLAN (21:15): I rise on behalf of the Liberal Party to speak to the Freedom of Information (Miscellaneous) Amendment Bill 2016. I advise the chamber that the Liberal Party will be supporting the passage of the bill. This bill, which was tabled by the Hon. Mark Parnell, is identical to a previous bill in the same name, introduced in 2014. The 2014 bill, however, lapsed due to the prorogation of the parliament.

I note that in March 2014, the member for Hartley in the other place, Mr Vincent Tarzia MP, introduced a private members' bill which also sought to amend the Freedom of Information Act. The member for Hartley's bill was aimed at similar reforms as the ones we see in the bill before the chamber tonight. The member for Hartley's bill was, perhaps not surprisingly, opposed by the government, so it failed to pass in the other place. Whilst I would rise to indicate the Liberal Party's support for this bill, I would like to also acknowledge the work of the member for Hartley in the other place in his attempts to achieve similar, albeit not identical, reforms in this field.

I have a few comments on the bill before the chamber. The bill responds to a report released by the Ombudsman in May 2014 titled 'An audit of state government agencies' implementation of the Freedom Of Information Act.' As the title suggests, the audit analysed the practices of 12 government agencies regarding the implementation of the Freedom of Information Act. I will read extracts from the executive summary of the Ombudsman's report, which aptly set out the reasons for conducting the audit and the reasons why the act needs amendment. The report states:

Government-held information is a public resource; and the public's right to access to this information is central to the functioning of a participative democracy. Freedom of information (FOI) legislation is one means by which the public can understand, review and participate in government decision-making.

The Freedom of Information Act 1991 (SA) has now been in operation in this state for two decades.

This audit is a snapshot of how 12 government departments…are managing their responsibilities under the Act…It also draws in part on the Ombudsman's experiences as a review authority under the Act.

The state government's recent policy initiatives on proactive release of information are timely, and relevant to the digital age. However, there is a 'disconnect' between these initiatives and the Act, and what the audit generally found to be the agencies' approach to information disclosure under the Act:

the Act is outdated and its processes belong to pre-electronic times

the agencies' implementation of the Act is wanting, and demonstrates a lack of understanding or commitment to the democratic principles which underpin the Act.

The Ombudsman made 33 recommendations as a result of his audit. It is important to note that not one of the 33 recommendations has been implemented by the government since the report was released some 3½ years ago. This is why it has been necessary for both the opposition and the Greens to introduce legislation in an attempt to achieve at least some level of reform in this important area. This bill seeks to implement 10 of the Ombudsman's recommendations.

The Hon. Mark Parnell went into a significant amount of detail in his second reading speech regarding the Ombudsman's findings and recommendations, and I do not intend to restate each individual one. I will, however, briefly mention some of the key features of the bill. The Liberal Party finds these features attractive and the reasoning of the Hon. Mark Parnell compelling or even seductive.

The bill introduces a reference to the principles of representative democracy in the objects sections of the act and also acknowledges that documents held by the government are a public resource to be held on behalf of the public and managed for public purposes.

This amendment responds to the Ombudsman's recommendation No. 1, which, importantly, highlighted that documents and information held by the government and FOI agencies are a public resource and the public has a right of access to government-held information, unless disclosure would, on the balance, be contrary to the public interest. Other amendments include:

placing an obligation on the relevant agency to acknowledge receipt of an FOI application;

providing that an agency or government department must refund the FOI fee if they have not acknowledged receipt of the application or access is granted to a document with respect to the application;

providing that an agency or government department must also refund any applicant who applied for an internal review of an FOI and does not receive a response within 14 days; and

providing that, if a determination is made at the direction of another person, the determination must include the name of that person and the extent of the direction given to the FOI office.

This particular amendment responds to one of the most damning findings of the audit report. I will quote from the executive summary, where the Ombudsman stated:

…it is common practice across all of the agencies to provide copies of FOI applications, determinations (draft or otherwise) and documents to their Minister to ‘get the green light’ prior to finalisation of access requests. While the Act permits a Minister to direct their agency’s determination, evidence provided to the audit strongly suggests that ministerial or political influence is brought to bear on agencies’ FOI officers, and that FOI officers may have been pressured to change their determinations in particular instances.

The Ombudsman's recommendation is that, if ministerial direction is to occur, it should be clearly set out in the agency's determinations and be established by a formal written policy common to all state government agencies. The opposition is pleased that the Hon. Mark Parnell's bill has addressed this particular recommendation. It is important that the act operates in a transparent manner that is free from political interference.

The bill also makes it an offence for a person to give improper direction or influence in respect of an agency's decision regarding access to a document under FOI. The opposition welcomes this reform. The opposition is pleased to support this bill, as it aims to provide greater incentive for departments to work free from ministerial or political interference. As I have mentioned in many other of my speeches to this chamber, it is my firm belief that this government is addicted to secrecy. The opposition consequently supports any initiatives that will ensure the government's workings remain transparent and it is held accountable.

The Liberal opposition supports an open, honest, transparent government, and it is our view that this bill, by improving the operation of the act, will go some way to achieving that. I commend the bill to the chamber.

The Hon. K.L. VINCENT (21:23): I am having a succinct night tonight, and I am glad to see that my parliamentary colleagues support that. I cannot guarantee that it will last for the rest of my term, but tonight is certainly a succinct night for me. I merely want to indicate that Dignity for Disability does support the bill. We certainly need to have a robust and streamlined freedom of information system in this state, so that we can freely discuss matters that are in the public interest and so that the public can get access to information that they have a right to know. In addition to that, these very sensible measures were recommended by the Ombudsman I think three or four years ago, 3½ maybe—

An honourable member interjecting:

The Hon. K.L. VINCENT: We will meet you halfway: 2½ years ago. Let us get on with legislating them. Therefore, Dignity for Disability is pleased to support the bill.

The Hon. M.C. PARNELL (21:24): I would sum up the second reading of this bill by thanking the Hon. Gail Gago, the Hon. Andrew McLachlan and the Hon. Kelly Vincent. I particularly want to thank the Liberal Party and Dignity for Disability for their support for this bill, which guarantees that it will pass this chamber tonight. I think that is a good thing for our democracy.

I do need to make some comments in relation to the Hon. Gail Gago's contribution. She pointed out all the adverse impacts that would flow for government agencies if this bill was to pass. She talked about complex legal issues, and she said it was not clear what this bill would achieve. Well, I can tell you, Mr President, exactly what it will achieve. It will achieve what the South Australian Ombudsman said was required to reform the law of this state to bring some fairness and rigour and democracy back into this state.

The process that I went through in drafting this bill was pretty simple. What I did was to get the Ombudsman's report from May 2014, entitled An Audit of State Government Departments' Implementation of the Freedom of Information Act 1991, I gave a copy of the report to parliamentary counsel, identified the bits that required legislative reform—because not every reform did, some of it required cultural change, it required a change of attitude on the part of departments—but for the things that required legislative reform I asked parliamentary counsel to draft the necessary amendments, and that is what they have done. So, this bill is, effectively, the implementation of what the Ombudsman said was needed.

Now, the government, in opposing every single clause in the bill, is effectively saying that the Ombudsman had nothing worth saying—none of his recommendations were worth implementing. I might just remind members that we are not talking about Mr Wayne Lines, the current Ombudsman: we are talking about Mr Richard Bingham, the previous ombudsman. When he resigned, after five years of service, back in June 1994, the Attorney-General, the Hon. John Rau, said:

Richard Bingham will leave early next month. After serving almost five years as Ombudsman for South Australia, Mr Bingham has decided, for personal reasons, to return home to Tasmania. Mr Bingham has provided valuable service to our state.

And this is the kicker, when the Attorney-General goes on to say:

Over the last four years, 97 per cent of his recommendations relating to state and local government were accepted and 80 per cent were fully implemented.

Ninety-seven per cent of his recommendations were accepted, and 80 per cent of them were implemented. Well, those stats have just taken a dive, because here we have all of his legislative recommendations in this report from two and half years ago rejected by the government.

What a remarkable thing for them to do. They could find nothing of any value in anything the Ombudsman said in his review. I will tell you why they are thinking like that. It is because the Ombudsman was scathing. He was scathing about the culture of secrecy that has permeated government departments; he was scathing about the culture of political interference with the exercise of statutory responsibilities by freedom of information officers; and he recommended changes to reform that system.

So, I think this is quite disgraceful that the government finds nothing of any merit in anything the Ombudsman had to say. I will not go on. I am pleased that the numbers are with us tonight and that this bill will pass the upper house. I would urge the Attorney-General to reflect on the passage of this bill through this place and to reflect on what he said on Mr Bingham's retirement about 97 per cent of his recommendations being accepted, and that he might review the government's position to oppose every clause in this bill.

Bill read a second time.

Committee Stage

Bill taken through committee without amendment.

Third Reading

The Hon. M.C. PARNELL (21:29): I move:

That this bill be now read a third time.

Bill read a third time and passed.