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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2023-11-29 Daily Xml
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Bills

Freedom of Information (Miscellaneous) Amendment Bill

Introduction and First Reading

The Hon. J.M.A. LENSINK (17:25): Obtained leave and introduced a bill for an act to amend the Freedom of Information Act 1991. Read a first time.

Second Reading

The Hon. J.M.A. LENSINK (17:26): I move:

That this bill be now read a second time.

This is a repeat of a 2020 bill that was introduced during the previous term of government to address gaps in the legislative framework that were identified by, and had the support of, successive ombudsmen, the person who performed the role of ombudsman. The FOI Act has not been significantly reformed since 2004, and that bill that was introduced in 2020 would have addressed recommendations which had been formally recommended to the South Australian government since 2014.

Additional reforms are proposed based on our experience as an opposition trying to access documents via the FOI Act, and informed by a continuing engagement with the Ombudsman and his office. I note that because this is a 2020 bill the then government had the opportunity to consult not just with the Ombudsman and his office but government agencies were consulted at that time, and they include the Department for Child Protection, the Department for Correctional Services, the Department for Energy and Mining, the Department for Innovation and Skills, the Department for Infrastructure and Transport, the Department of Human Services, the South Australian Tourism Commission and DPTI. They all indicated their support for the bill.

The 2020 act sought to update the FOI Act in line with interstate reforms and changes in technology. At that time, the bill was not supported by the then Labor opposition and was not progressed to a vote in the House of Assembly. We have found since March 2020 that there is a distinct lack of transparency in this newly elected government. It has established a track record of slow, incomplete, reluctant and inconsistent responses to FOI applications—a particular standout being the office of the Deputy Premier, who I think has been issued with directions from the Ombudsman in response to some of her office's responses. The Ombudsman has moved to the point of having to express concern with respect to the conduct of multiple departments and to overrule a number of departmental and ministerial responses.

In relation to this particular bill, I would like to quote from a speech of the former Deputy Premier, the Hon. Vickie Chapman, on 8 April 2020. She said:

Representative democratic government is supported and enhanced by ensuring that proper public scrutiny of government activity occurs. Documents and information held by government agencies are a public resource. Consistent with these principles, members of the public should have a presumptive right to access such information, subject only to such restrictions that are consistent with the public interest and the preservation of personal privacy.

That is the set of principles behind which the Liberal opposition supports these changes to the legislation. Our party took a set of policies to the 2018 state election, prioritising open and accountable government and transparency. This particular piece of law, the FOI Act, has been in operation since 1992, so there has not been a good piece of work that has taken place at a parliamentary level to update the act. The Hon. Ms Chapman went on to say:

In May 2014, nearly six years ago—

it was at that stage—

the former ombudsman, Mr Richard Bingham, released his report, an audit of state government departments' implementation of the Freedom of Information Act. That 2014 report was a snapshot of how 12 government departments were managing their responsibilities under the act. It is a very good read. That 2014 report contained a number of recommendations for amendments to the Freedom of Information Act, which are fully endorsed by our current Ombudsman, Mr Wayne Lines.

Those legislative changes have not been made through the parliament. In terms of process, the Hon. Ms Chapman went on to say that she had asked the Ombudsman for his views on the 2014 Ombudsman's audit report. There was a comprehensive review that took place as a result, so the bill that we have before us includes a range of changes. I will just outline some of those for the benefit of members:

Legislating for proactive disclosure of government information and publication of disclosure logs. Legislating in this way for proactive disclosure and disclosure logs would mean that those who publish information will receive protections under the liability that is contained in the FOI Act, including protections against actions for defamation or breach of confidence.

Reinforcing the presumption in favour of disclosure by amending the objectives.

Legislating for the 10-year rule for release of cabinet submissions.

Providing that refusal of access on the basis that documents cannot be found or do not exist is a reviewable determination. This is a matter that I have experienced myself. There was a piece of case law that has meant that the Ombudsman must always rule that way, but this change was also going to be accompanied by specific powers for the Ombudsman to require an agency to explain what searches were undertaken and allowing the Ombudsman, on external review, to remit deemed or inadequate determinations back to the agency for reconsideration.

Increasing the Ombudsman's powers on external reviews to obtain documents from agencies.

Creating an offence of improperly directing or influencing a decision or determination made under the act, which was a specific recommendation made back in 2014.

Precluding agencies from charging processing fees if they exceed the statutory time limit for giving access to information.

Updating the act to reflect electronic communications and electronic information management and storage methods.

Extending the time agencies have to deal with an application from 30 days to 45 days and for internal reviews from 14 days to 20 days to reduce the significant number of deemed refusals. I am sure honourable members would have come across these situations themselves, where the agency is not able to deal with the matter in 30 days and then it is automatically deemed as a refusal. It then goes to an internal review, and it may be provided in that time. It may then go to external review.

Amendments to allow applicants and agencies to negotiate extensions of time for dealing with access applications. If there is an unusually high number of applications, this would particularly apply.

Setting clearer limits around what is considered an unreasonable request for access.

Allowing the Ombudsman to declare an applicant vexatious on the Ombudsman's own initiative or on the application of the agency such that an agency may refuse to deal with an application by the person.

Providing greater flexibility on who may deal with FOI applications by removing seniority requirements for officers dealing with part 4 amendments of records applications, because they are straightforward.

In relation to reviews by SACAT under the act, this review process would be streamlined so that external review applications must first be made to the Ombudsman. The Ombudsman, we believe, has the investigative capability and is best placed to deal with the reviews at first instance.

Changes to document and agency exemptions in schedules 1 and 2 of the act would include:

deleting the subcategories of document exemptions in schedule 1 of the documents containing unproved criminal allegations, since these should be covered by the existing exemption for unreasonable disclosure of personal affairs information;

merging the existing cabinet and executive council documents exemptions;

exempting information and correspondence prepared by agencies for the purpose of an audit by the Auditor-General while the documents are in the possession of the agency;

exempting documents containing matters the disclosure of which could reasonably be expected to identify the location of threatened or endangered flora or fauna or other rare items of cultural and scientific importance; and

including a limited agency exemption for the Office of Parliamentary Counsel in respect of the documents it holds that are subject to legal professional privilege.

In summary, there are a number that could be viewed as updating outdated matters but also improving the experience for the applicants and also for agencies. I know from our own experience that there are issues sometimes, where if you had a bit more time under the act then matters could be resolved without triggering reviews. We also had examples where there were some vexatious series of applications.

I would think from the government's point of view—they are not going to accept advice from me—that these are fairly straightforward and sensible recommendations. With those comments, I commend the bill to the house.

Debate adjourned on motion of Hon. I.K. Hunter.

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