Thursday, 26 November 2015
Freedom of Information Amendment (Requests and Reasons) Bill 2015; Second Reading
I am very pleased to contribute to the debate today on the Freedom of Information Amendment (Requests and Reasons) Bill 2015. I, along with the coalition government, support the Freedom of Information Act and support transparency in government. It is one of our country's greatest strengths that we ensure the decisions of government are put under scrutiny and, where possible, are out in the open. This government has a strong record over the last two years of making the small improvements to regulations and legislation necessary to make the operations of government simpler and more transparent. But this bill does not do anything to help with transparency in government. It does not relieve the administrative burden of FOI requests. It will, in fact, increase the costs and complexity of FOI processing and result in significant processing delays. Of course, it certainly is an admirable intention to improve the FOI system wherever possible. This government would be quite happy to support such improvements if they are well thought through—but this bill is not well thought through. This is typical of the back-of-the-coaster policy style of the modern Australian Labor Party. One of the reasons we will not be supporting the bill is that it has a range of unintended consequences, which often arise when you have not properly done the policy work.
To explain why the bill will not work, we should take some time to consider what the bill intends to achieve. This bill seeks to amend the Freedom of Information Act 1982 to require government agencies and ministers to publish the exact wording of freedom of information requests. The amendments will also require agencies and ministers to publish a statement of reasons concerning the decision to allow or refuse the release of requested documents. The bill has the stated aims of: ensuring transparency and accountability are included within the framework of government decisions concerning freedom of information requests; allowing the public to view requests that have been made and the reasons why documents were or were not released; allowing applicants seeking similar documents to build upon previous requests; and reducing duplication of requests. Furthermore, the explanatory memorandum to Senator Ludwig's bill states:
Publishing the reasons for decisions will allow for scrutiny of departmental decisions and open the door to further reform to allow review of requests by parties other than the initial applicant.
Section 11C of the FOI Act currently requires agencies and ministerial offices to maintain an online disclosure log. The disclosure log must either publish information made available in response to an FOI request or provide details of how the public may obtain that information. Senator Ludwig's bill proposes to amend these requirements by: removing the option of providing the details of how the public may obtain information; requiring the publication of the exacting wording of the FOI request; and requiring publication of a statement of reasons concerning the decision to allow or refuse the release of the requested documents.
The current disclosure log requirements, together with the information publication scheme, or IPS, were part of the previous Labor government's package of FOI reforms in 2010. These reforms were intended to reduce the number of FOI requests over time, with the FOI Act providing access to information through agency driven publication, rather than only in response to requests for documents. Again, these are all pretty reasonable sounding goals and, on a cursory reading of the proposed legislation and seeing those intentions, this could be a bill worth looking at. However, as reported in the Hawke FOI review, implementation of the IPS and disclosure log requirements have, in many cases, increased FOI processing costs, with resources being diverted from other key areas to assist with FOI processing. As well as increasing the costs of FOI processing, these initiatives have not resulted in any reduction in the number of FOI requests received by agencies and ministers. In fact, since the FOI reforms commenced in 2010, the number of FOI requests have increased from 23,605 in 2010-11 to 28,643 in 2013-14. So a closer reading shows that what this bill proposes does not in fact work. So we on this side of the chamber do not support this bill—because we do not support legislation that says it will do one thing but, in fact, does the opposite.
Let us look, then, in some further detail at how this bill will work as opposed to what it intends. Item 1 of Senator Ludwig's bill inserts a new definition of 'working day' in the interpretation section of the act, which applies in relation to a requirement in a provision of the FOI Act to publish information to mean a day that is not a Saturday, a Sunday or a public holiday in the place where the function of publishing the information under the provision is to be performed. As the term 'working day' is only used in section 11C, it is difficult to see how this will 'eliminate confusion concerning time frames for publishing information' as is the suggested intent of the amendment. Items 2 and 3 of Senator Ludwig's bill remove the option for an agency or minister to publish details of how information may be obtained rather than the information itself. Currently subsection 11C(3) provides that the information disclosed in the request must be published on the agency or ministerial website by: making the information available for downloading from the website; publishing on the website a link to another website from which the information can be downloaded; or publishing on the website other details of how the information may be obtained. Items 2 and 3 of Ludwig's bill amend subsection 11C(3) to remove the option of simply publishing on a website details of how the information may be obtained rather than the information itself.
Senator Ludwig states that this amendment is designed to provide the public with easy access to documents released under the Freedom of Information Act 1982. The current requirement is for information that is released to be published to the public, generally on a website. Some agencies publish the documents released on their websites and the FOI request. What this will do is remove the flexibility, where the information cannot be readily published on a website, of providing details of how the information can be accessed. The current flexibility ensures that there is no impediment for those who are interested in accessing the particular information, while at the same time not imposing an onerous administrative burden on the agency.
It may not be straightforward for an agency or minister to publish some documents in accessible formats on a disclosure log or to convert documents to such formats within 10 working days. This may be an issue, for example, if information has been redacted from a document or where a voluminous document is only available as a hard copy or in a PDF format. Removing flexibility will impose an administrative burden on agencies and ministerial offices in preparing documents for publications within 10 working days of information being released. This could create challenges for agencies and ministers in managing increased FOI workload and impact on the processing of FOI applications
Item 5 of Senator Ludwig's bill amends the FOI Act to insert a new provision, section 11D. This proposed new section requires agencies or ministers: where access is given to the whole document, to publish the FOI request itself and the reasons for decision within 10 working days after the person is given access; where access is given to an edited document, to publish the FOI request itself and the notice that an edited copy has been prepared and grounds for deletion within 10 working days after the notice is given; if a request for reasons for decision is made for the refusal to the whole document, publish the reasons within 10 working days after the reasons are given; and where access is not given to a document at all, to publish the FOI request itself within 10 working days after the decisions and the reasons for decision within 10 working days after the reasons are provided. Essentially, this provision will require agencies and ministers to publish the exact wording of FOI requests.
New section 11D will also require agencies and ministers to publish a statement of reasons concerning the decision to allow or refuse the release of requested documents. Section 26 of the FOI Act currently provides for statements of reasons to be given where a decision is made to refuse access. Section 22 provides reasons to be given where an edited copy of a document is provided. The difference with the new provision is that a statement of reasons is also required when access is granted in full and that all statements of reasons, as well as the requests themselves, must now be published within 10 working days. Once again, this new provision will impose a substantial administrative burden on agencies and ministerial offices which could result in significant processing delays in other aspects of FOI processing. Senator Ludwig states that this measure will facilitate more practical use of freedom of information requests, will reduce duplication of requests and open the door for further reform by parties other than the initial applicant. But as I have already said, it is more likely that publishing reasons for decisions will result in overburdened agencies struggling to manage increasingly heavy FOI workloads, taking short cuts and adopting published reasons rather than making a decision based on the circumstances of the particular FOI request.
It is for all of these reasons outlined by me over the past few minutes that the coalition will not be supporting Senator Ludwig's bill.