Right to Information Bill (QLD) 2009
Information Policy Legislation Reform
Department of Premier and Cabinet
By Email: RTIfeedback@premiers.qld.gov.au
Dear Madam/Sir
Re: Right to Information Bill
The Council thanks you for the opportunity to make a submission in relation to this vitally important piece of legislation.
The Council is a voluntary organisation which has worked for the last 40 years to secure the implementation in Queensland of the Universal Declaration of Human Rights.
Article 21 of the Universal Declaration of Human Rights provides:
1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives;
2. Eveyone has the right to equal access to public service in his country;
3. The will of the people shall be the basis of the authority of government.
It is the Council’s view that freedom of information is essential to enabling the citizens of the State of Queensland to fully enjoy this right.
This submission is primarily the work of executive member Robert Gallo and Vice President Andrew Sinclair.
Dr Solomon’s independent review panel proposed a bold new model for freedom of information in this state under which in most cases disclosure would occur unless it could be shown that some positive harm outweighing the benefits of disclosure would flow from disclosure. However, the Council is concerned that legislative implementation of the panel’s vision may fall short of that objective.
In our submission regarding the Right to Information Bill 2009, the Queensland Council for Civil Liberties wishes to stress the importance of protecting the public right to information, which the Bill in its objects at Section 3 tries to make clear. On the basis of this concern, we have prepared brief submissions regarding deficiencies in the proposed legislation that warrant consideration and remedying. These are as follows:
The application of the proposed s48 and the need for a presumption in favour of disclosure.
The factors favouring non-disclosure and the need to narrow and specify their scope.
The Decision Making Process
Section 48
The Council is concerned about the practical operation with Section 48 which provides for a huge number of factors to be considered in the schedules, each to differing degrees before making even the simplest decision about an obvious matter for disclosure. Such a long, complicated process is open to abuse by public servants and decision makers.
Section 51 of the Bill must be amended to require every decision maker to identify clearly which factors they have considered and to describe the balancing process that they have undertaken in arriving at their decision to refuse access to a document.
The provision in the objects clause of a general statutory object of disclosure will not, in the Council’s view, provide sufficient guidance in its application to ensure that s48 is interpreted in such a way as to promote a presumption in favour of disclosure. Cole JA of the New South Wales Court of Appeal has made clear that
“whilst regard may be had to an objects clause to resolve uncertainty or ambiguity, the objects clause does not control clear statutory language, or command a particular outcome of exercise of discretionary power.”[1]
On this basis, it is necessary for s48 to provide explicitly that, in the balancing act prescribed by the section, the decision maker must start from a presumption in favour of disclosure. This is to say that the balancing act must be done in relation only to deciding whether or not to refuse disclosure, and that concrete reasons must be noted in order to overcome this presumption. The legislation needs to expressly provide that the onus is on the person asserting that harm will follow from disclosure to show that the harm that may occur will be serious and substantial and there is a real risk that it will occur.
Schedule 3 – Exemption Information
Item 2 – Cabinet Documents
Para 1 (a) and (c) should be qualified to require that (b) (its disclosure would reveal any consideration of Cabinet or would otherwise prejudice the confidentiality of Cabinet considerations or operations) applies.
Furthermore 1 (a) should be altered to apply to information that “on its face” has been created for consideration by the Cabinet. This is to say that if any reader cannot tell, by the basic nature of the information, that it went to cabinet or was created for it, it cannot be exempt.
Item 3 – the Executive Council
This item refers to exclusions for documents relating to the executive council. We strongly submits that the Executive Council is too wide a category (much wider than the Cabinet) to exclude from disclosure of information that comes from it. We would submit that simply being submitted to the executive council constitutes too much of a “blanket” provision that could be used to hide information which would not necessarily harm the interests of the state and which it is genuinely in the public interest to disclose. Hence, to close such a loophole and remove the potential for abuse, we submit that information submitted to executive council not be blanketed with exemption from FOI but subject to a public benefit test similar to other pieces of government-held information.
Item 7 – Information subject to legal professional privilege
We submit that this provision is too wide for the interest that it protects. It should only apply to legal advice provided by persons with a practicing certificate. We observe with interest that the grand chamber of the European Court of Justice in a decision on 1 July 2008 in the matter of Sweden & Turco v The Council & Ors held that legal advice in relation to draft legislation should be disclosed. In fact the Court took the view that disclosure of legal advice on “questions arising where legislative initiatives are being debated increases transparency and strengthens the democratic rights of European citizens to scrutinise the information which has formed the basis of a legislative act.” The Court concluded that the relevant European regulation imposed an obligation to disclose the opinion of the Council’s legal service relating to a legislative process.[2] Whilst we would accept that legal professional privilege is important to a government when it is involved in disputes or drafting contracts or other ordinary legal advice, legal opinions in relation to legislation as it is being passed through parliament should be available to the public. We invite the government to include this exemption in the draft bill.
Item 11 – Investment Incentive schemes
We submit that this provision is flatly unjustified and should be removed. It is a cornerstone of any Freedom of Information legislation that government can be better held accountable. If the schemes which Item 11 protects will not withstand public scrutiny they should have no place as a function of government. At the best, they should not be exempt for a period longer than Cabinet documents.
Factors that Affect Non-Disclosure
Part 3 - Factors favouring Non-disclosure
The general view of the Council with regard to these factors favouring non-disclosure is that they are, in a practical sense, too wide. We wish to stress the importance of the general object of the Right to Information Bill, which is to provide access and disclosure of government information to citizens. It is also important to highlight the way in which these very broad categories of non-disclosure would militate against this object in such a way that may not be justifiable.
Item 2 – where disclosure may reasonably be expected to prejudice private, business, professional, commercial or financial affairs of individuals or entities.
This item provides a factor against disclosure where disclosure may reasonably be expected to prejudice the private, business, professional, commercial or financial affairs of individuals or entities. Whenever information is disclosed, it will almost always prejudice some sort of individual or entity (especially when phrased as broadly as it is here). The Council believes that this provision is clearly too wide and in practice could easily be used as a legitimate excuse for non-disclosure in relation to the release of any type of information. The Council proposes that its application be sufficiently narrowed so as not to pose as an automatic trump card to disclosure in any circumstance.
Item 12 – effects on the state economy
This provision is phrased far too simply and generally. Practically speaking it would have the effect of frustrating the general object of disclosure inherent in the entire bill. The extremely general nature of its expression is more than likely to detriment the possibilities of disclosure, with any decision maker being able to summarily determine that to some degree the economy of the state is affected, and thereupon refuse disclosure. Whilst the protection of the state’s competitive advantages and economy is important, a careful approach to this must be distinguished from making broad provisions which effectively neuter the interests of disclosure in the process. As we have said in two previous submissions in relation to FOI the Australian Law Reform Commission in its report almost some 15 years ago found that this exemption was superfluous and should be repealed.
Items 14, 15 and 17 – Prejudicing intergovernmental relations; trade secrets, business affairs or research of an agency; competitive commercial activities of an agency.
In a similar vein to Item 12, these provide extremely broad criteria to support the non-disclosure of information. Also, as with Item 12, there is no guide or proper direction as to how to interpret and apply these factors. In short, due to their current wideness, all three items are far too susceptible to being summarily applied for the non-disclosure of information.
We repeat our submission to the independent review panel:
The Council endorses the views of Chris Finn[3] that:
“Commercial information is overprotected from disclosure under contemporary FOI legislation. This overprotection is evident quite apart from democratic arguments that the “public right to know” may override established commercial interest. Viewed solely in economic terms, the existing levels of protection for business information appear hard to justify. FOI legislation should be redrawn so that business information is only protected where its release will cause demonstrable harm to the competitive process itself. It should not be sufficient to justify exemption, as is currently the case, either that the material is of a commercial nature or that its release will cause some harm to the individual enterprise.”
At the very least, the FOI Act ought to be amended to provide that to justify a nondisclosure, as Moira Paterson[4] says there must be some risk of harm to the financial affairs of the government agency. That must be a harm which outweighs the democratic interest in government accountability.
In the case of information supplied voluntarily in confidence, a similar test needs to be applied. It needs to be demonstrated that the disclosure of information will cause harm to the position of the confidant or prejudice to the future supply of information and that the harm will outweigh public interest in disclosure.
Part 4 Factors favouring non-disclosure having additional weight because of particular harm of disclosure
Item 4 – disclosure of deliberative process
This provision is defective in a similar way to the items in Part 3 addressed above, in that it is drafted in terms that are far too broad.
We can but repeat our submission to the independent review panel as follows:
“This is an exemption quite often claimed as a coverall when there is nothing else to rely upon. We concur entirely with the comment of Ms Patterson in the discussion paper that if members of the public are to make a meaningful contribution to political debate they need to have access to the material upon which decisions are made.
In line with the general approach recommended in this submission, we are of the view that the exemption should be recast to focus on the harm that might flow from the release of documents. The focus should be on assessing whether or not the release of the document will cause some harm to the policy development process.”
As it is framed the item in Schedule 4, Part 4 dealing with deliberative processes in our submission presumes that the release of the information about a deliberative process will result in harm. If our submission to amend clause 48 to make it clear that a real likelihood of substantial harm has to be demonstrated is not accepted at the very least the provision relating to deliberative processes needs to be specifically amended to make it clear that the specific disclosure is going to result in some harm. In our submission as it is presently framed it continues the current model of the Act which is to presume that the disclosure of deliberative processes will result in harm.
Additional Submissions with regard to the Bill
The Council strongly argues that as a matter of public service and to give incentive for the speedy processing of applications and avoid intentional delays, the bill should provide that application fees be refunded for applications which take longer than the processing period to finalise.
Section 36 (3)
Section 36 (3) provides that the applicant must decide whether to pay fees for access within 20 days. This time period is significantly shorter than a department might have to assess an application. It is ridiculous to suppose that a whole department should have longer to access an application than an individual or community group might have to decide whether to pay fees. The Council proposes that this subsection be removed. In its place the application should remain on foot for a fixed period after the notice of fees is given – in the order of around 90 days – before being placed on hold indefinitely.
Section 39 (4)
To add proper safeguards and ensure that the intention of the section cannot be thwarted or circumvented, S39 (4) should be altered to read ‘must’ where it has ‘may’.
Section 40
In order to streamline application procedures and not allow procedural issues to be used as a way of blocking entire applications, the Council suggests that s40(1) should have an extra sub-point (c) added which provides that they can only apply to that part of the application which infringes upon (a) or (b), not the whole application.
Section 50
This provision must specify that the charge applicable will be less than under this Act. This is crucial. Otherwise, agencies could hide information by making it available elsewhere at a prohibitive cost.
Section 53 (a)
This provision should be removed. Searching for and retrieving the document should not be included in the processing fee definition. It is part of every government organ’s functions to do such things and the public should not have to pay for any inefficiency in them doing so.
Section 63
The process described in this section’s content is too slow and bureaucratic to receive only a single year’s extension.(s63 (5)) It is the Council’s view that the extension should be either much longer (eg. 7 years) or until the Information Commissioner decides to conduct a review.
Section 69
With regard to the deletion of information, this section must contain a provision whereby the deletion is justified. For instance, an applicant cannot have meaningfully agreed to the removal of information when it doesn’t know what it is. The information’s deletion should be subject to a balancing exercise so as to afford greater protection from removal and greater emphasis on a commitment toward disclosure in the public interest.
Section 74 (1) (a)
This provision should specify that access to inspect can only be considered reasonable if they have an opportunity to make a copy of the information, and that they cannot be charged anything for mere inspection.
Sub (b) should provide that all electronic copies are to be provided free.
Part 8
On a more general note, The Council believes, as a way of ensuring comprehensive oversight, all applications which are refused in any way or part should have to have a copy of the application, the refusal reasons and the information provided to the Information Commissioner as a matter of course. Such a practice would enable proactive review of the actions of Departments without having to relying on appeals to expose serial non-disclosure.
We trust these submissions will aid in your further deliberations.
[1] Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31, 78.
[2] Press Release No. 43/08 of the European Court of Justice, 1 July 2008
[3] Quoted in Rick Snell Commercial in Confidence – Time for a Rethink? 102 Freedom of Information Review 67 at 69
[4] Commercial in Confidence & Public Accountability: Achieving a new balance in the contract state (2004) 32 ABLR 315 at 327