Page 1642 - Week 05 - Thursday, 5 May 2016
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In addition to capturing every public entity, the bill also extends to cover information held by private entities that have been contracted by the government to provide public services, such as technical or scientific reports. This is consistent with a number of reviews of FOI laws, including by the Australian Law Reform Commission, which made reference in their review of the commonwealth FOI act to the need to:
prevent loss of accountability because information relating to the provision of a service is in the possession of a private sector body and not a government agency. This issue needs to be addressed to ensure that all information necessary for government accountability purposes is available to the public.
The bill will also apply to all information irrespective of any government reorganisation or ministerial reshuffle. The bill contains a mechanism to ensure that where agencies are dissolved or amalgamated, or ministers leave the ministry or particular portfolios, the information that was held by the agency or the minister remains available to the public.
The bill will also create the new position of information officer. This will be the person or people appointed by each agency to be responsible for ensuring that the agency meets its new FOI obligations. Information officers will play a vital role in the administration of the new scheme. There is a guarantee of independence in their decision-making and they will be tasked with deciding FOI applications as well as ensuring the publication of open access information.
Information officers will be able to work together and assist each other as the need arises. The intention is that this will improve the government’s capacity to respond to applications to access information and the consistency of decision-making.
A further very significant change proposed in the bill is the independent oversight and review role given to the Ombudsman. The Ombudsman will be the equivalent of the information commissioner in other jurisdictions, such as the commonwealth and in Queensland. The Ombudsman will be responsible for reviewing decisions made by agencies and ministers, for investigating complaints and general oversight of the act. All decisions not to disclose government information will be subject to Ombudsman review, which can be sought by anyone.
The new information officer role and the review role of the Ombudsman negate the need for internal review of FOI decisions. The information officer position is intended to ensure that it is the senior officer that makes the first decision and avoids the need for internal review. Administrative errors can still be corrected without the need for the current process of internal review. For the most part, the current internal review process simply delays the process and encourages conservative decisions to be made in the knowledge that if the applicant is unhappy they can seek internal review from a more senior officer.
If a person is dissatisfied with an Ombudsman review decision, they may seek review of that decision in the ACAT. In such a review, ACAT will effectively operate as a review tribunal and must be constituted by three members who are presidential or senior members.
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