Skip to content.

Home

Allens

Focus: Federal FOI reform

27 April 2009

In brief: The Federal Government has proposed an overhaul of freedom of information laws to provide greater public access to government information. As a result, companies that provide services to the Federal Government or whose business affairs are detailed in government information may find that their information is more susceptible to disclosure. However, companies seeking Federal Government information concerning administrative decisions or in connection with litigation may benefit from the reforms. Partners Paul Nicols (view CV) and Alex Cuthbertson (view CV) and Lawyer William Atkins report.

How does it affect you?

  • Decisions by Federal Ministers or agencies regarding requests to reveal information regarding business affairs of companies and individuals will be subject to a public interest test that favours disclosure.
  • There will be fewer obstacles to obtaining Federal Government documents regarding internal administrative decisions in areas such as taxation.
  • The Federal Government is actively considering whether private sector information should be subject to FOI laws.

Background

In March 2009, the Federal Government unveiled details of its long-awaited reforms to the Freedom of Information Act 1982 (Cth) (the FOI Act). The Special Minister of State, John Faulkner, released two exposure draft bills containing the proposed legislative machinery to give effect to the reforms: the Freedom of Information Amendment (Reform) Bill 2009 (the FOI Bill) and the Information Commissioner Bill 2009 (the Commissioner Bill).

Senator Faulkner characterised the changes as the first substantial overhaul of the federal freedom of information (FOI) regime since the FOI Act's inception in 1982.

Return to top

Access to private business documents

If enacted, the FOI Bill will permit greater disclosure of documents held by Federal agencies and Ministers that relate to the affairs of private businesses.

Under the current provisions of the FOI Act, documents arising out of companies and securities legislation are exempt from disclosure. The FOI Bill provides for the removal of this exemption.

Further, exemptions from release of documents relating to 'business affairs' and 'personal privacy' will be more difficult to sustain. The business affairs and personal privacy exemptions will be conditional on meeting a single public interest test. A Federal agency considering an application for a document that is conditionally exempt must apply the public interest test – that is, it must give access to the document unless access to the information at that time would, on balance, be contrary to the public interest. Factors that favour disclosure are:

  • promotion of the objects of the FOI Act;
  • whether disclosure would inform debate on a matter of public importance;
  • promotion of effective overseeing of public expenditure; and
  • whether disclosure would allow a person to access his or her own personal information.

Under the FOI Act's current provisions, individuals and corporations have become accustomed to consultation with a Federal agency or Minister if the agency or Minister proposes to provide access to a document containing information about the individual's or corporation's business or professional affairs. Schedule 3 of the FOI Bill will amend the FOI Act to provide that the agency or Minister will only be required to consult with the business where it appears that the business might reasonably wish to make a contention that the document is exempt under the business affairs exemption. This raises the possibility that consultation with businesses prior to the provision of documents to the applicant will decrease in practice.

The FOI Bill also removes a number of reasons to refuse disclosure. If enacted, decision makers may not take into account several factors that they currently do such as embarrassment to the Federal Government and potential for the document to lead to misunderstanding or unnecessary debate.

However, important exemptions will remain under the reformed FOI Act, including for documents subject to legal professional privilege and those containing material obtained in confidence.

Return to top

Service contracts with the Commonwealth

The FOI Bill provides, in Schedule 6, that information generated by contracted service providers and contractors delivering services to Federal agencies will be subject to the FOI Act, in that a Federal agency will be required to take contractual measures to ensure that it receives a document from a contracted service provider or contractor where:

  • the agency is required to publish the document under the proposed information publication scheme which, in essence, requires information that is routinely disclosed upon application under the existing FOI Act to be published regardless whether there is an application or not;
  • the document relates to the entry by the contracted service provider into the contract; or
  • the agency would have in its possession the document if the agency were to perform these services in its own right.

These provisions will have implications for the contracting practices of services providers and such providers will need to carefully consider risk and liability issues arising from the disclosure of information regarding their relations with the Federal agency and any professional or technical advice they provide under the terms of those contracts.

Return to top

Review processes

The draft bills propose that a new statutory office holder - the Information Commissioner - will undertake merits reviews of decisions by agencies and Ministers to refuse access to documents.

FOI Applicant diagram

The review by the Information Commissioner may only occur after an internal review of the refused application by the agency in question. The Information Commissioner will have wide discretionary powers regarding the conduct of the Information Commissioner's review. The Government anticipates that the Information Commissioner's determinations will almost always be done 'on the papers' without a hearing.

A right of review by the Administrative Appeals Tribunal after review by the Information Commissioner will be available to applicants and agencies and an appeal on a question of law will lie directly to the Federal Court from a decision of the Information Commissioner. The Information Commissioner will also be able to refer a question of law to the Court during a proceeding.

Return to top

The future: FOI for the private sector?

The Federal Government has foreshadowed that it will refer to the Australian Law Reform Commission (ALRC) the issue of whether FOI should be extended to, or another disclosure regime provided for, the private sector.

The ALRC considered the question in 1996 and concluded that the democratic accountability and openness required of the public sector under the FOI Act should not be required of the private sector. It said that private sector bodies did not exercise executive power of the government and did not have a duty to act in the interest of the whole community, so should not be under an obligation to disclose to any member of the public any document in their possession.

The Federal Government now says that a re-examination of this position is timely, but it has not to date provided any compelling rationale for that view.

Return to top

Conclusion

While companies seeking Federal Government information concerning administrative decisions or in connection with litigation may benefit from the reforms, there may be unwelcome implications for companies that provide services to the government or whose business affairs are detailed in government information.

The Federal Government has provided a short period for submissions regarding the proposed reforms set out in the FOI Bill and the Commissioner Bill, with a deadline of 15 May 2009.

The terms of reference for the ALRC review into private sector FOI is expected to be finalised by the Federal Government by the end of 2009.

For more information, or if you would like to consider making a submission on the proposed reforms, please contact one of the people listed below.

Published 27 April 2009

For further information, please contact:

Return to top

Share with

What are these?

 

 

Recent Litigation & Dispute Resolution publications