Freedom of Information Bill 2016 (ACT) passes Assembly

On 11 August 2016, the Freedom of Information Bill 2016 passed the ACT Legislative Assembly with amendments. The Bill essentially repeals the existing Freedom of Information Act 1989 (ACT) and creates a new modern freedom of information (FOI) scheme.

Background to the Bill

Underpinning the Bill is the principle that a public right to government information is essential for an effective democracy. Consequently the Bill is designed to make information held by the Government more accessible to the community than it has ever been before. The Bill creates a statutory right of access to information held by the Government wherever it is not contrary to the public interest for that information to be disclosed and sets up a clear framework for determining the public interest in the disclosure or non disclosure of government information. Information will only remain confidential where it is on balance contrary to the public interest to release the information; that is there must be a clearly identifiable harm to the public interest from the release of the information that outweighs the public interest in disclosure and necessitates non disclosure.

Amendments Contained in the New Principal Legislation

The Bill shifts the FOI scheme from the current model (taken from the Commonwealth Freedom of Information Act 1982), to a new scheme based on the Queensland Right to Information Act 2009 (QLD RTI Act) with some important changes to improve the efficacy of the scheme and further increase the availability of government information.

The Bill removes the class based exemptions that exist under the current FOI scheme and recognises that the public interest in the disclosure of information will depend on the nature and circumstances of the particular information in question rather than the class of information that it happens to be part of.

According to the Explanatory Statement, instead of broad exemptions to the public right to government information the Bill deems a number of discrete categories of information, defined either by reference to specific legislative provisions or by the outcomes which can be expected to occur if it is released, to be contrary to the public interest to disclose. There are only two reasons for information to be deemed contrary to the public interest to release. Firstly where it is necessary to keep the information confidential to protect essential public interests (which may include the protection of individual rights such as the right to privacy) and secondly where the information is held by certain statutory office holders who must decide the release of information under a different statutory scheme and where the information they have obtained from another government agency may be able to be accessed through that agency directly. For example schedule 1 deems information related to audits conducted by the auditor-general to be contrary to the public interest to disclose. Given that the auditor-general is required to make a decision about the publication of information obtained from an agency under the Auditor-General Act 1996 and the information held by the agency will be available from the agency directly it is not necessary for this information to be available from the auditor-general under the FOI scheme.

According to the Minister, Mr Rattenbury, in his Second Reading Speech to the Bill:

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Freedom of Information Bill 2016 [ACT] and Secondary Materials as reproduced in TimeBase LawOne