Freedom of Information Bill: Labor seeks sweeping cover-up powers

Hansard: 5 February 2008 ASSEMBLY

[center]FREEDOM OF INFORMATION AMENDMENT BILL

Second reading

Mr CLARK (Box Hill) — This is a bill to amend the Freedom of Information Act. The government has gone to the public and the media saying it is a bill to introduce reforms responding to the Ombudsman’s report and to make other improvements to freedom of information. But instead when we examine the bill we find it is a bill under which the government will be giving itself enormous power over what information is made public.

It is giving itself sweeping capacity to extend time limits by a further 30 days; and it is also giving itself the power to put on hold all requests by applicants, particularly requests by applicants such as members of Parliament and journalists, under the expediency of a spurious claim that applications are vexatious.

We already know that this is a government that is given to secrecy, cover-up, obfuscation and corner cutting. We have seen it with projects such as channel deepening, the desalination plant and the north-south pipeline. Some of those projects may have merit in principle, others may not. But what is common to the government’s handling of all of them is that decency and due process have gone out the window. Community groups across the state are outraged at the lack of full and frank information that they are receiving from this government.

In relation to freedom of information, as in so many other areas, the government has adopted an Animal Farm approach. That classic novel by George Orwell is yet again typified and characterised by the Bracks and Brumby governments. Having abused the previous government for alleged misuse of freedom of information, and after coming to office and promising what government members claimed would be a new era of reform and enlightenment, they then proceeded to abuse freedom of information legislation outrageously to suppress rather than to release information and to manipulate public debate.

It is not just opposition members of Parliament who are saying that now. We had the recent report of the Ombudsman of June 2006, the Review of the Freedom of Information Act, which has backed up exactly the sorts of concerns that opposition members have been talking about.

Just about every member on this side of the house has stories about the delays, the misleading responses, the spurious claims of voluminous or unclear requests that have been used to filibuster our applications. When that has not worked the government has poured hundreds of thousands of taxpayers’ dollars into resisting applications at the Victorian Civil and Administrative Tribunal and through the court system.

My colleague Richard Dalla-Riva was put through years of extended litigation, including the threat of the loss of his family home hanging over his head, simply because he wanted to get access to documents that may have shed some light on what government secret pre-2002 election plans had been put in place to toll the Scoresby freeway and to find out how much extra motorists are being forced to pay as a result of the now Premier’s extraordinarily costly EastLink tollway deal.

My colleague the member for Brighton and Deputy Leader of the Opposition has similarly been taken to the Court of Appeal by this government. But in that case the outcome, at least to date, has been different. The Court of Appeal delivered a stinging rebuke of the government’s interpretation of cabinet-in-confidence provisions. I quote in particular the judgement of Court of Appeal judge Justice Buchanan in the case of The Department of Infrastructure v. Asher (2007) VSCA 272, where he said:

I can readily understand that it is necessary for the protection of an essential public interest to prevent the disclosure of documents revealing the views expressed by members of cabinet as to a matter and the manner in which cabinet treats and uses information placed before it. I am unable to see, however, that the disclosure of a document placed before cabinet, without any indication that cabinet even read the document, let alone how cabinet dealt with the document, could jeopardise any public interest.

That remark by Justice Buchanan blows the whistle on the approach to cabinet-in-confidence confidentiality which the government has been asserting over many years. As I said, in his report of June 2006 the Ombudsman has now backed up many of the things that opposition MPs have been saying for years. One need only refer to a few extracts from that report and a few of the case studies that the Ombudsman included in his report to get the flavour of the Bracks and Brumby governments’ approach to freedom of information. At page 4 of the report the Ombudsman said:

My investigation revealed that delay in processing FOI requests is still a major issue within the departments and Victoria Police. I am also concerned about the lack of quality in reasons for decisions, the poor level of assistance to applicants and some internal practices.

He pointed out that, while across the board full access is given in response to 77 per cent of all requests, when one looks at departments one sees that only 36 per cent of requests are given full access. He said:

Delay was a key issue. Only 56 per cent of FOI decisions by government departments in 2003-04 were made within the statutory time frame of 45 days. Nearly 21 per cent of decisions took more than 90 days.
At page 5 the Ombudsman said:

In many of the files examined requests were handled promptly, diligently and well. However, many files demonstrated undue delay.

The Attorney-General’s guidelines advise five days should be allowed for noting by the minister’s office of decisions on sensitive FOI requests, but this was exceeded in many cases, often exacerbating delays.

In several cases examined the reasons given for claiming exemptions were misleading. In some cases departments’ asserted requests were unclear or voluminous with little or no justification. In many cases they failed to give proper assistance to applicants in amending their requests. The effect was to delay answering the request without appearing to exceed the time limits of the act.

…

Some decisions showed little regard for the objects of the act.

Some responses provided material that might technically be relevant to the request but was of little or no value to the applicant. Some took advantage of every available exemption to provide as little material as possible.

In many cases statements of reason were inadequate. The material facts on which the decision was based were not stated and the documents for which exemption was claimed were not identified or linked to the reasons given.
He also found:

My officers’ examination of cases indicated little evidence that multiple requests overwhelmed the resources of the department. It did not support the need for an extension of time available to agencies to respond.

The files examined did not suggest that third-party consultation was necessarily a source of undue delay.

He also observed:

While multiple requests and complex requests for sensitive documents can be demanding, I consider that is part of the general flow of work for departments and other agencies for which their FOI units should be adequately resourced.

The 45 days allowed for processing under the act is already longer than is allowed by most Australian jurisdictions and I do not see grounds for the time to be extended for multiple requests.

He also said:

At present few Victorian agencies fully comply with the publication requirements …

Departmental record management systems are often not designed or sufficiently well maintained to be an efficient tool for an FOI search.

…

Departments frequently claim exemptions on grounds of confidentiality or personal information without contacting the third parties whose interests are involved to establish and/or confirm the grounds for those exemptions.

In many cases information about the reasons for exemption is prepared for internal use and advice but is not given to the applicant.

In most cases where information such as a schedule of documents and the reasons for exemption is already prepared for advice to management or the minister’s office, it should be provided to the applicant.

The Ombudsman then went on to make a range of recommendations, many of which I will touch on in discussing the bill. But before doing so, I want to refer to some of the case studies that the Ombudsman cited, because they give a flavour of what opposition and other non-government MPs are facing on a routine basis. In relation to the case studies on page 24, in one case he illustrated the extent to which documents were held up in a minister’s office, with the freedom of information officer waiting 26 days for advice that the minister had been fully briefed on the sensitivities of the report. He observed:

The act does not authorise agencies to wait for noting of the proposed decision by the relevant minister.

The improved accountability guidelines issued by the Attorney-General suggest that the FOI officer should wait only five days for noting by ministers so that decisions are not unduly delayed.

But clearly that is not happening. At page 30 of his report, regarding case 5, the Ombudsman said:

A request was made for reports or results produced from a survey carried out for a department. Having photocopied some thousands of pages of raw survey results, the department then advised the applicant that assessing the material might be ‘voluminous’ and sought clarification of the request.

The suggestion that the original request was voluminous was inappropriate. It should have been evident that the applicant was requesting reports prepared on the data and not the raw data itself. Moreover, the raw data did not contain exempt material and would have been easy to assess.

On case 6 the Ombudsman said:

A request sought access to documents relating to consultancy services provided by a specified company. The department adopted a definition of ‘consultancy services’ taken from the Victorian Government Purchasing Board’s … guidelines which excluded ‘contracts’. The applicant was not made aware of the definition …

On that basis:

… documents were then treated as irrelevant …

He observed:

A file note referred to the exclusion of some documents as ‘lucky’.

The final example I will cite is case 7:

On the 44th day after a request was received, the department asked the applicant to clarify it and suggested that, if not clarified, the request might be voluminous.

The request appeared quite clear in its terms.

No information was recorded on the file to indicate how the request was unclear or to justify the assertion that the request was potentially voluminous, or to show any assessment of the resources needed to process it.

These examples should be enough to cause ministers to hang their heads in shame and any government backbenchers with decency to clamour for proper reform and a change of practice by the government. But instead of saying, ‘Mea culpa’, or instead of saying, ‘We plead guilty, and we promise to change and to repair the damage and do better in future’, the Attorney-General has come into this house trying to represent the Ombudsman’s report as actually giving a clean bill of health to the government’s practices.

To make matters worse, when we actually examine the bill that has been brought before the house we find, as I said at the outset, that far from simply implementing the recommendations of the Ombudsman as he put them forward, the government is using this bill to try to wind back even further the scope of freedom of information legislation in Victoria.

The Ombudsman made a number of recommendations that are relevant to this bill. In his report he classified his recommendations as falling into three groups, including legislative, process and administration recommendations. The measures in this bill come from both the legislative and the administrative sections of his recommendations. The legislative recommendations are incorporated in part 3 of the bill.

Many of this part’s amendments are unexceptional, such as confirming that FOI applications can be lodged electronically, empowering the Attorney-General to require agencies to use the FOI online web service, rewording the provisions relating to personal information to bring them into line with the Information Privacy Act 2000, removing the conclusive certificate provisions, which have been unused in Victorian legislation, and providing for various procedural and mechanical amendments.

This part of the bill also includes an extension of the time limit for dealing with FOI applications, to which I will return, and the removal of application fees, which currently stand at $22, as well as a provision allowing departments to waive minor charges of up to $11.

Other amendments in this bill, which do not reflect the intent of the Ombudsman’s recommendations, include two that arise out of his so-called administrative recommendations. In his report the Ombudsman recommended there be a review of part II of the Freedom of Information Act and that VCAT (Victorian Civil and Administrative Tribunal) be given the power to declare various applicants vexatious. The bill purports to pick up on these two recommendations, but in one part it imposes a scheme far removed from what the Ombudsman was pointing to, and in the other part the government has inserted extraordinarily wide powers to block FOI applications under the guise of preventing claims by vexatious applicants.

Starting with part 3 of the bill, the provision that causes the opposition considerable concern is the one that extends the time line — by 30 days to 75 days — for the determination of applications in cases where third-party consultation is required.

The instances where third-party consultation is required are referred to in clause 11 of the bill and may involve personal information, trade secrets or other commercially confidential information, or information given to the government in confidence. In principle, of course, where there is a genuine reason and a genuine need to engage in third-party consultations, that should occur.

However, the concern the opposition has is that in practice the time it takes to undertake that consultation, and the proposed extension of times contained in the bill, gives the government enormous scope for abuse. There is going to be a wide number of occasions on which the government will be able to use the cover of third-party consultation to gain even further extensions of time than that currently contained in the legislation. The Ombudsman pointed out that the 45 days in the existing legislation is longer than that provided for in many other jurisdictions. He found that overall there is no need for an extension of time.

The Ombudsman suggested an extension of time in cases involving third-party consultation. But the concern of opposition members is that, regardless of the merits of the recommendation in principle, we simply do not trust the government — and we think there is very good cause not to trust the government on this measure — because it will simply be seized upon as a device for further delay.

As the Sunday Age editorial of 25 November 2007 in relation to the bill points out:

The only significant change is to slow the release of information from a dribble to a drip. Brumby has extended the response time for FOI requests from 45 days to 75 days. It beggars belief that the best solution to freedom of information officers failing repeatedly to meet the 45-day deadline was to give them even more time.

The opposition will therefore be moving an amendment to delete this extension of time. On the balance we do not believe it is supportable, given the government’s track record of abusing freedom of information legislation and given the enormous potential for future abuse that would be provided by the extension.

I want to turn now to talk about the changes being proposed in part 2 of the bill to part II of the principal act. This is a topic that was canvassed by the Ombudsman, starting at page 50 of his report.

He assessed the merits and the effectiveness of the existing provisions, which go back to the 1980s, when freedom of information legislation was first introduced. Of course there have been considerable developments in technology since then. The Ombudsman recommended that there be reforms to part II of the existing legislation, but he was very specific about the direction of the reforms. I quote his recommendation at page 52:

I recommend that government departments and agencies review their compliance with part II of the act and that DOJ should monitor the compliance by agencies with part II. I also recommend that part II is reviewed as a matter of urgency, giving consideration to adopting a system of publication schemes on the model of the UK FOI act.

At page 51 he outlined the UK scheme and stated:

One aspect of the UK approach is its flexibility. The legislation does not attempt to prescribe the range of information to be published but rather allows each agency to prepare its own scheme, subject to approval by an information commissioner.

I emphasise those latter words, ‘subject to approval by an information commissioner’. No carte blanche is given to government under the UK approach, which is the Ombudsman’s preferred approach.

That can be contrasted with the scheme that has been put before this house. There is no information commissioner and no independent scrutiniser or approver of the scheme for publication of information under this bill — far from it. The Ombudsman is not given a say over it. It is the Attorney-General, the minister administering the act, who is to issue the standards relating to the information to be published by agencies under this part.

For heaven’s sake, it is the Attorney-General who has been at the core of the abuse of the Freedom of Information Act which has taken place under the current government and which has led to the appalling results which the Ombudsman documented in his report and which are recognised far and wide across the state, particularly by the media and anybody else who has tried to obtain information from the government.

Yet it is this Attorney-General — without any scrutiny and without any independent check or safeguard — who is going to be given total power to decide what is to be published under the regime for publication of information that is contained in part 2 of this bill. There is no way that the opposition is going to have a bar of that approach. I would certainly hope that the other non-government parties will support us in that.

I would also hope that any government backbenchers — or indeed government ministers with any decency — would realise the folly and inappropriateness of giving a minister total power over what regime of information is published. There is certainly scope for the reform of part II of the legislation, but the regime that the government has brought to this house would take the community out of the frying pan and into the fire. It will be vigorously opposed by the opposition.

The final area that I want to canvass is proposed part VIA dealing with vexatious applicants, which is to be inserted by part 4 of the bill. It certainly reflects the Ombudsman’s recommendation that there be a power for the Victorian Civil and Administrative Tribunal to declare an applicant to be vexatious. That is something that the opposition supports in principle. But there is a real nasty that the government has slipped into this provision, and it is contained in proposed sections 61A(3) and (4).

Those subsections provide that if an agency or a minister makes an application for a person to be classified as a vexatious applicant, the determination period — which is the time period within which the application is resolved or determined — is to be disregarded in the computation of the period for notice of an FOI decision or the period referred to in section 51(2)(b) of the legislation. The determination period is defined as:

… the period commencing on the day that the application is made to the Tribunal … and ending on the day that the application is determined by the Tribunal or withdrawn.

In other words, if the government applies to have someone declared as a vexatious litigant, every application that person has lodged with government is put on hold until the issue is determined by VCAT. You can just imagine how that could be abused by government to restrict access to freedom of information particularly by members of Parliament and by journalists who, in the course of doing their job properly, may well have a number of applications to government under freedom of information on foot at any one time, and yet the mere making of an application by government to have that person declared vexatious will put all their FOI applications on hold.

Proposed section 61C gives an open-ended partial definition of what being a vexatious applicant amounts to, and that can be constituted by applications being made for the purpose of or having the effect of obstructing or otherwise unreasonably interfering with the operations of the agency or agencies.

In other words, it does not have to be proved that the applications have a purpose of unreasonably obstructing or interfering with the operation of a government agency; it simply has to be claimed that the applications have that effect.

The Ombudsman has already been very critical of unjustified allegations by government that FOI requests are unduly demanding or unreasonably interfering with the operation of a government agency, and yet that will be sufficient ground for an application to be made. Of course when it gets to VCAT, the application will have to be heard by the President of VCAT, who will be a judge. It may be that the application will be thrown out on its ear eventually, but in the meantime all of that person’s FOI applications will have been put on hold. We believe the unilateral power the government is proposing to give to itself is completely unacceptable, and we will be proposing that those two subsections in proposed section 61A be deleted.

Let me also point out that it may well be that not only is this manifestly and on ordinary principles a breach of the rights of citizens, it may also infringe on the government’s much-vaunted charter of rights and responsibilities, because the charter prohibits arbitrary interference with people’s rights and abilities to gain access to information. The government’s statement of compatibility on this bill claimed that the provisions are neither unlawful nor arbitrary as they are sufficiently circumscribed and reasonable. But is it reasonable and is it not arbitrary that the mere fact that a government makes an application is enough to stymie an applicant’s rights to obtain access to information? The failure of the statement of compatibility to address that issue is yet another indictment of how contemptuous the government is in its approach to its own charter.

In conclusion, the benefits side of the ledger in relation to this bill is modest indeed.

Yet in addition to those provisions that I have already referred to, we have potential concerns about provisions such as clause 8, in terms of applicants having their FOI applications rejected on the basis that a document can already be obtained on a website. All the government has to do is point to an internet site where that document can be obtained; and, as we all know, documents can be buried very deeply within internet sites. But the main concerns we have are those I have described in relation to the potential abuse of the extension-of-time provisions, the enormous power that the government is grabbing for itself to determine the standards of publication of information, and the power that it is giving itself to stymie the work particularly of members of Parliament and journalists by spurious allegations that they are vexatious applicants.

We will be moving amendments to deal with those three particular vices, as I have foreshadowed. I hope they will be well received by the house.

Regardless of the outcome of that, in this place we will not be opposing the bill. But if the government does not accept our amendments in this house, we will certainly be pressing them in the other place. We will be making very clear to Victorians that yet again this government is being shifty, duplicitous and secretive, and I think the public of Victoria have had enough of it.