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Freedom
of Information
This page considers Freedom of Information law and practice
in Australia and overseas
It covers -
introduction
Freedom of Information legislation aims to ensure
community access to contemporary government information
(in contrast to archival documentation).
In most nations FOI and Archives
legislation have complementary roles, with FOI providing
access to records that may still be in use by government
agencies and have not been transferred to an archival
institution because of age or disuse.
The objectives of the Australian federal FOI Act illustrate
some perceived benefits of such legislation -
-
to improve the quality of decision-making by government
agencies in both policy and administrative matters by
removing unnecessary secrecy surrounding the decision-making
process;
- to
enable groups and individuals to be kept informed of
the functioning of the decision-making process as it
affects them and to know the kinds of criteria that
will be applied by government agencies in making those
decisions;
- to
develop further the quality of political democracy by
giving the opportunity to all Australians to participate
fully in the political process;
- to
enable individuals, except in very limited and exceptional
circumstances, to have access to information about them
held on government files, so that they may know the
basis on which decisions that can fundamentally affect
their lives are made and may have the opportunity of
correcting information that is untrue or misleading.
FOI
enactments typically cover most government executive agencies
within a particular jurisdiction (eg exclude judicial
agencies and legislatures), with exclusions regarding
information concerning -
- defence,
public order and national security (in particular security
agencies)
- the
administration of justice (eg relating to corporate
crime, customs and taxation)
- the
national economy (eg records of the central bank)
- personal
privacy (discussed in the Privacy
guide on this site)
- corporate
information supplied on a confidential basis, eg trade
secrets, patents and other Intellectual
Property
- relations
with other governments and international organisations
Some
of the legislation regarding official secrecy is discussed
in a preceding page of this guide.
Access may be provided on a full or partial basis: it
is common for some requests to be addressed through provision
of a partial file or a document in which particular information
has been expunged. That access is generally provided on
a free or low-cost basis, with applicants allowed to peruse
specific documents on agency premises or receive a photocopy
for a nominal fee. Access is generally restricted to individuals
and other entities legally resident in the particular
jurisdiction (eg Australian citizens and companies).
Most legislation specifies a turnaround time for response
to requests for access and features, along with a formal
appeals mechanism that is often administered by a discrete
agency (such as a Human Rights or Information Commissioner)
that reports direct to the legislature rather than the
executive.
In practice - particularly since the mid 1990s - there
have been recurrent complaints about dilatory decisionmaking,
excessive caution in expunging or otherwise denying access
to documents, inappropriate charges by agencies for processing
requests, under-staffing (or even abolition of) oversight
agencies and withdrawal of electronically published information
on the grounds of national security
after 11 September.
David Banisar quotes a New Zealand Secretary of the Cabinet
as stating that
virtually
all written work in the government these days is prepared
on the assumption that it will be made public in time
… the focus in the current open style of government
is on managing the dissemination of official information
Much
information is now transmitted orally or in the form of
Post-it notes and other tools that can be cleaned
before release of files.
Implementation of the legislation is sometimes underpinned
by publication of information about agency record-keeping
systems, with some regimes such as Australia for example
requiring government departments to provide the legislature
with both a description of the system's operation and
a list of files or other records created over the past
year/quarter. That arrangement reflects a recognition
that it is inappropriate to deny access (or encourage
administratively onerous 'fishing expeditions') through
denial of information about what information is collected/maintained
by agencies.
David Banisar's Freedominfo
site offers information on FOI legislation across the
globe. A useful point of entry into the academic literature
is the collection of papers in Freedom of Expression
& Freedom of Information - Essays in Honour of Sir
David Williams (Oxford: Oxford Uni Press 2000) edited
by Jack Beatson & Yvonne Cripps.
Australian federal legislation
In Australia at the national level the Freedom
of Information Act 1982 (FOI)
and complementary Archives Act 1983 cover the retention
of information by the national bureaucracy and long term
access to that info.
The federal FOI Act embodies principles of 'openess, accountability
and responsibility' with the expectation that there will
be a legally enforceable right of public access to information
in the possession of government agencies, ie -
- documents,
no matter how old, containing personal information about
the applicant
- documents,
no older than 1 December 1977 (ie outside the '25 Year
Rule' for access under the federal Archives Act), relating
to anything else.
Applicants
may request that information concerning them be changed
if it is incomplete, out of date, incorrect or misleading.
That right encompasses documents held by the majority
of Commonwealth agencies and also applies to documents
held by Ministers that relate to the affairs of Commonwealth
agencies. Exemptions include documents relating to national
security and relations between governments; the Cabinet,
Executive Council and Governor-General; personal privacy
and the national economy. Most internal 'working documents'
are also not accessible. There are however a range of
'public interest' provisions.
A response to applications for access is required within
30 days. The Act provides for internal reconsideration
and appeal against a decision not to grant access to a
document or amend or annotate a personal record.
Those wishing access under the legislation are expected
to pay an application fee ($30) and processing charges;
both may be reduced or waived on grounds that included
personal hardship or the public interest.
Under section 8 of the Act, an agency must publish a statement
about its structure, consultation arrangements, types
of documents held and arrangements for access to them.
Under section 9, an agency must publish a statement about
documents available for inspection and purchase, including
internal policies.
A list of Memoranda issued by the Attorney-General's Departmernt
regarding administration of the Act is here.
Apart from an internal review process within agencies,
oversight is provided by the underfunded Commonwealth
Ombudsman,
with appeals to the Administrative Appeals Tribunal (AAT)
and thereafter on points of law to the Federal Court.
A summary of AAT decisions under the legislation is here.
In the 2000-2001 FY there were 35,439 information requests,
of which 90% concerned personal information and 10% policy-related
documents. 78% were granted in full, 17% in part and 5%
wholly refused (with 262 complaints to the Ombudsman and
150 appeals - mostly by journalists - to the AAT). In
2005-2006 some 41,430 FOI access requests were received,
of which 14,627 were directed to the Department of Immigration
& Multicultural Affairs, 13,817 to Centrelink and
8,330 to the Department of Veterans' Affairs.
85% were for personal information about the applicant
and other people. The remaining 15% concerned documents
featuring other information, for example government policy
development and decision-making. 38,987 of the requests
were determined in the reporting period and granted in
full or in part. The average processing cost was $601
per request; the government reported that only 2% of the
total cost was recovered in fees and charges.
studies of the Australian regime
The Australian Law Reform Commission Open Government
report
on the Freedom of Information Act, supplemented by the
2003 discussion paper
regarding Review of measures designed to protect classified
and security sensitive information in the course of investigations
and proceedings, provides insights from the perspective
of administrative accountability. Moira Paterson's Freedom
of Information and Privacy in Australia: Government and
Information Access in the Modern State (Sydney: LexisNexis/Butterworths
2005) is essential reading
The 2003 report (PDF)
of the Senate Legal & Constitutional Legislation Committee
Inquiry into the Freedom of Information Amendment
(Open Government) Bill 2000 and the Commonwealth
Ombudsman's 1999 Needs to Know: Own Motion Investigation
into the Administration of the Freedom of Information
Act 1982 in Commonwealth Agencies report (PDF)
offer other insights.
Greg Terrill's Secrecy & Openness: The Federal
Government From Menzies To Whitlam & Beyond (Melbourne:
Melbourne Uni Press 2000) considers official secrecy,
freedom of information and archives legislation from a
national information policy perspective.
The FOI Law Review (FLR)
is published by the University of Tasmania's Law School.
Australian state/territory legislation
Most of the Australian states and territories have
FOI legislation covering their jurisdictions -
ACT
Freedom of Information Act 1989 here
with review by the Commonwealth Ombudsman
NSW Freedom of Information Act 1989 here
SA Freedom of Information Act 1991 here
and Local Government (Freedom of Information) Amendment
Act 1991 with review by the SA Ombudsman
Queensland Freedom of Information Act 1992
here is oversighted by the Information Commissioner
of Queensland (IC)
Victorian Freedom of Information Act 1982
here
WA Freedom of Information Act 1992 here
is oversighted by the Office of the Information Commissioner
Western Australia (ICWA)
Tasmanian Freedom of Information Act 1992
here
UK
The UK Freedom of Information Act 2000 (FOI)
is being progressively introduced, with transitional legislation
in May 2001 renaming the Data Protection Tribunal (established
under the Data Protection Act 1998) as the Information
Tribunal. It is envisaged that all provisions will be
in effect by the end of 2005.
The Act is overseen by the statutory Information Commissioner,
concerned with both the Freedom of Information regime
and the Data Protection.
The 2000 enactment extends the 1985 Local Government
(Access to Information) Act concerned with documents
about the policies and practices of local authority documentation
(and which mandated that meetings of local authorities
must be open to the public and media).
The FOI Act provides a general right of access to information
held by over 70,000 agencies, with response to requests
required within 20 working days. Public authorities are
also required to publish a number of categories of information
about their structures and activities. Appeals are heard
by an Information Tribunal in the first instance and thereafter
on points of law to the High Court of Justice.
Exemption agencies and categories of information include
-
- intelligence
agencies
- ministerial
communications
- information
that relates to policy formulation and investigations
- information
regarding "the effective conduct of public affairs"
There is provision for exemption of
- statistical
data and other factual information and its analysis,
research findings
- scientific
assessments
- reports
on overseas practice
-
cost data and consultants’ studies
Restriction
under a more limited 'prejudice exemption' requires the
agency to demonstrate harm to interests that include the
economy, defence and crime prevention, international relations,
commercial interests and immigration.
A
'public-interest test' provides for withholding of information
only when the public interest in maintaining the class
or prejudice exemption outweighs the public interest in
disclosure.
Moves towards greater autonomy for parts of the UK have
been reflected in other FOI legislation, such as the Freedom
of Information Act (Scotland) Act 2002, here,
which covers Scottish 'public authorities'. That Act is
enforced by the Scottish Information Commissioner (SIC),
a position of the UK Information Commissioner. A code
of practice on the Act has been published by the Scottish
Executive.
Patrick Birkinshaw's Freedom of Information: The Law,
the Practice & the Ideal (London: Butterworth
1996) is a definitive study of UK law and practice, complemented
by Public Access to Government-Held Information
(London: Stevens 1987) edited by Norman Marsh. There is
a more caustic account in Tom Cornford's 2001 paper
The Freedom of Information Act 2000: Genuine or Sham?
EU
Freedominfo provides a case study
on access to official documentation in the European Union,
dating from the landmark 1993 Code of Access to EU
Documents and oversighted by the European Ombudsman
(EO)
For a perspective on citizen access to EU government information
we recommend visiting Statewatch's page
tracking implementation of Article 255 of the Amsterdam
Treaty to "enshrine" a right of access to documents from
the Council of the European Union, the European Commission
and the European Parliament.
A broader perspective is provided by Alasdair Davidson's
2001 Supranational Governance & the Right to Information:
Experience in the EU (PDF).
US
The 1966 US federal Freedom of Information Act
has been amended several times. It covers executive and
military departments, government corporations and other
entities which perform government functions except for
Congress, the courts or the President's immediate staff
(including the National Security Council).
In contrast to most FOI legislation the enactment allows
any person or organisation, regardless of citizenship
or country of origin, to request records held by federal
government agencies, which must respond in 20 working
days. Appeals or complaints about delays can be addressed
to the specific agency or to the federal courts.
Nine categories of exemptions under the Act encompass
-
-
information protected by other statutes
- national
security activity
- business
information
- "inter
and intra agency memos"
- personal
privacy
- law
enforcement records
-
financial institutions
- oil
wells data
- internal
agency rules
During
2000, there were 2.235 million FOI requests to federal
agencies.
Associated legislation includes the Sunshine Act requiring
disclosure of deliberations of multi-agency bodies such
as the Federal Communications Commission and the Federal
Advisory Committee Act requiring the openness of committees
that advise federal agencies or the President.
All US states have enactments regarding access to government
records, underpinned in several instances by Information
Commissions that review decisions.
Among the extensive literature on US secrecy legislation
and policy we recommend Daniel Moynihan's Secrecy:
The American Experience (New Haven: Yale Uni Press
1999) and FOI Advocate, an online newsletter
covering federaland state developments.
The Torment of Secrecy: The Background & Consequences
Of American Security Policies (Chicago: Dee 1996)
by sociologist Edward Shils is a classic. The Federation
of American Scientists 1998 project
on Government Secrecy, covered the CIA's prepublication
review process, cold war documentation, declassification
policy, freedom of information, secret government spending,
and international relations.
A Culture Of Secrecy: The Government Versus The People's
Right To Know (Lawrence: Uni of Kansas Press 1998)
is a useful collection of essays edited by Athan Theoharis,
complemented by Blacked Out: Government Secrecy in
the Information Age (Cambridge: Cambridge Uni Press
2006) by Alasdair Roberts. Charles Davis & Sigman
Splichal edited the broader Access Denied: Freedom
of Information in the Information Age (Ames: Iowa
State Uni Press 2000).
The National FOI Coalition (NFOIC)
is an alliance of nonprofit state FOI and First Amendment
organizations and academic centers.
Canada
The 1982 federal Access to Information Act (PDF)
in Canada covers federal agencies. Information encompassed
by the Act may be embodied in letters, memoranda, reports,
maps, plans, drawings, audio recordings, film and video
recordings, photographs, microforms and machine-readable
records.
The Act provides for access (with exceptions) by Canadian
entities to records held by government agencies. Withholding
of records encompasses information obtained on a confidential
basis confidence from another government or international
organisation, that would undermine constitutionial or
international affairs, undermine national defence, the
deliberations of Cabinet, that would prejudice the enforcement
of justice, that features personal information defined
by the Privacy Act or that contains trade secrets and
other confidential information of third parties.
The Act is overseen by the federal Information Commissioner
(IC).
an independent ombudsman appointed by Parliament. The
Commissioner has strong investigative powers but may not
order specific resolution of disputes, instead mediating
between government agencies and dissatisfied applicants
for access.
All the Canadian provinces have an FOI enactment. Many
have a statutory FOI/Information commissioner concerned
with oversight and provide enforcement.
New Zealand
New Zealand's Official Information Act 1982 is
here.
It centres on the declaration that
Everyone
has the right to freedom of expression, including the
freedom to seek, receive, and impart information and
opinions of any kind in any form.
It
is complemented by the Local Government Official Information
and Meetings Act 1987 regarding information held
by local government agencies.
Under the 1982 Act any New Zealand entity can demand official
information held by public bodies, state-owned enterprises
and bodies that carry out public functions. The body has
no more than 20 days to respond. Agencies have been required
in some cases to take down notes of discussions that contributed
to government decision making if no documents are available.
Exemptions include information that -
- would
harm national security and international relations (eg
that provided in confidence by other governments or
international organizations)
-
is needed for the maintenance of the law and the protection
of any person
-
would harm the economy of New Zealand or relates to
the entering into of trade agreements
-
could intrude into personal privacy, commercial secrets,
privileged communication and confidences
- could
damage public safety and health, economic interests,
constitutional conventions and the effective conduct
of public affairs, including "the free and frank
expression of opinions" by officials and employees.
An
Information Authority was established by the Act but for
a a fixed term and ceased in 1988. It had conducted audits,
reviewed legislation and proposed changes. Some of its
functions were transferred to the Legislative Advisory
Committee and the Ombudsman. The latter's decisions are
ostensibly binding but in the absence of sanctions for
noncompliance some agencies have ignored rulings.
For the New Zealand regime see Freedom of Information
in New Zealand (Auckland: Oxford Uni Press 1992) by
Ian Eagles, Michael Taggart & Grant Liddell.
international organisations
As the above notes suggest, there is no international
convention regarding freedom of information that is binding
on all states or on international institutions such as
the World Bank, the United Nations General Assembly, World
Trade Organization, World Intellectual Property Organization
or ICANN.
Release of non-public information by those organisations
is thus essentially at their discretion. The absence of
systematic access is of concern, given arguments that
international
organisations have assumed some responsibilities of national
governments, questions about recourse if they act inappropriately
and suggestions that some organisations are markedly inefficient
or even corrupt.
Some bodies have moved to articulate objectives for the
release of documentation or implemented effective access
regimes (eg that embrace statements of principle about
transparency that are underpinned by mechanisms such as
information access centres, catalogues and an avoidance
of unnecessary access charges).
They include -
the
World Bank | policy here
World Trade Organization | policy here
International Monetary Fund | briefing here
Asian Development Bank | policy here
Questions of the interaction of national and international
regimes are highlighted in Colin Bennett's concise Globalization
& Access to Information Regimes report.
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