Freedom of Information Amendment (Requests and Reasons) Bill 2015

Senator McGRATH: It gives me great pleasure to rise this morning to speak on the Freedom of Information Amendment (Requests and Reasons) Bill 2015. This bill amends 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, 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 Freedom of Information Act currently requires agencies and ministerial officers to maintain an online disclosure log. The disclosure log must either publish information made available in response to a freedom of information 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 details of how the public may obtain information, requiring the publication of the exact wording of the FOI request and requiring the 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 publications scheme, were part of the previous Labor government's package of freedom of information reforms, in 2010. These reforms were intended to reduce the number of freedom of information requests over time, with the Freedom of Information Act providing access to information through agency-driven publication rather than only response to requests for documents. However, as reported in the Hawke freedom of information review, implementation of the information publication scheme and disclosure log requirements have, in many cases, increased freedom of information processing costs, with resources being diverted from other key areas to assist with freedom of information processing.

As well as increasing the costs of freedom of information processing, these initiatives have not resulted in any reduced in the number of freedom of information requests received by agencies and ministers. In fact, since the freedom of information reforms commenced in 2010, the number of freedom of information requests has increased from 23,605 in the year 2010-11 to 28,643 in the year 2013-14.

As mentioned by previous speakers on this side of the chamber, the government does not support this bill. I will go through the various reasons why we will not be supporting the bill. There is going to be a new definition of 'working day'. Item 1 of Senator Ludwig's bill inserts a new definition of 'working day', in the interpretation section of the act, as follows:

working day, in relation to a requirement in a provision of this Act to publish information, means a day that is not:

(a) a Saturday; or

(b) a Sunday; or

(c) 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 used only in section 11C, it is difficult to see how this will eliminate confusion concerning timeframes for publishing information, as is the suggested intent of the amendment.

Items 2 and 3 of Senator Ludwig's bill, in relation to publication of information and access to documents, will remove the option for an agency or a 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, under 11C(3)(a), or by publishing on the website a link to another website from which the information can be downloaded, under 11C(3)(b), or by publishing on the website other details of how the information may be obtained, under 11C(3)(c). Items 2 and 3 of Senator Ludwig's bill amend subsection 11C(3) to remove the option of simply publishing on the 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 FOI Act.'

The current requirement is for information that is released to be published for the public generally on a website. Some agencies publish the documents released on their websites and the FOI requests. 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 a minister to publish some documents on a disclosure law in an accessible format 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, where a large 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 publication within 10 working days of the information being released. This could create challenges for agencies and ministers in managing an increased freedom of information workload and it could impact on the processing of freedom of information applications.

Item 5 of Senator Ludwig's bill, in relation to publication of requests and reasons, amends the Freedom of Information Act to insert a new provision—a new section 11D. This new section requires agencies or ministers, where access is given to whole document, to publish the freedom of information request itself, and the reasons for the decision, within 10 working days after the person is given access. It requires agencies or ministers, where access is given to an edited document, to publish the freedom of information request itself and the notice that an edited copy has been prepared, and the grounds for deletion, within the 10 working days after notice is given. If a request for the reasons for the decision is made for the refusal to the whole document, the new section requires agencies or ministers to publish the reasons within 10 working days after the reasons are given. Where access is not given to a document at all, the new section requires agencies or ministers to publish the freedom of information request itself within 10 working days after the decision, and the reasons for the decision, within 10 working days after the reasons are provided. Essentially, this provision will require agencies and ministers to publish the exact wording of freedom of information requests.

The new section 11D proposed by Senator Ludwig 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 Freedom of Information Act currently provides for statements of reasons to be given where a decision is made to refuse access. Section 22 of the Freedom of Information Act 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 substantive administrative burden on agencies and ministerial officers, which could result in significant processing delays in other aspects of freedom of information processing.

Senator Ludwig states that this measure will facilitate more practical use of freedom of information requests, will reduce duplication of requests and will open the door for further reform by parties other than the initial applicant. It is more likely that publishing reasons for decisions will result in overburdened agencies that are struggling to manage increasingly heavy freedom of information workloads taking shortcuts and adopting published reasons rather than making a decision based on the circumstance of the particular freedom of information request.

This government is committed to being a transparent, accountable and open government. The Freedom of Information Act is an important accountability measure, which facilitates the open and transparent operation of government. Rather than ensuring accountability and transparency, the measures in the bill will compromise the effectiveness of the decision-making processes under the Freedom of Information Act. It is unlikely that the measures in the bill will reduce duplication of requests, as requests cannot be refused where information is publicly available free of charge or where information that would substantially address the subject matter of the request is regularly made available—for example, in annual reports or otherwise. Nor can the request be refused if the request is substantially the same as another freedom of information request that has been made. An applicant does not need to provide a reason for making a freedom of information of request.

This will not reduce duplication of requests. It will not reduce the number of requests. Instead it will impose further unnecessary steps and procedures into existing processes for access to government information under the Freedom of Information Act. This will delay the costs and complexity of freedom of information processing and result in significant processing delays. That is why this government will be opposing the bill of Senator Ludwig.