THE NSW Ombudsman, Bruce Barbour, last week released a public discussion paper as part of his review of the state’s freedom of information regime (FOI) which began in April this year.
NSW is following in the bold footsteps of the Queensland Government, which recently announced sweeping changes to its FOI regime after accepting almost all the recommendations put forward by an independent review panel.
The paper describes the NSW Freedom of Information Act (1989), which has been amended more than 60 times, as “unwieldy and difficult, confusing and frustrating for both applicants and participants”. Further, it acknowledges that the subsequent introduction of additional legislation also governing aspects of FOI has made the system even more uncertain and confusing.
One of the issues the paper canvasses is exemptions and the use of “public interest” test. Currently, NSW FOI legislation contains 39 exemptions set out in 26 clauses, eight of which contain a public interest test. The paper raises the question of whether NSW should go down the same route as Queensland and replace these with a single, overarching public interest test that applies to all information, with factors for and against disclosure set out in the legislation.
In addition, the paper notes that the number of exemptions to the FOI regime is constantly growing — even though some of them are rarely, if ever, used — and asks if the number should be reduced.
The paper also specifically looks at the issue of cabinet exemptions which it recognises are “particularly contentious in their interpretation and operation”. The NSW cabinet exemption applies to documents that in some way concern any deliberation or decision of cabinet. As the paper notes, this is broader than the Victorian and Commonwealth equivalents, which only exempt documents that disclose any actual deliberation or decision of cabinet. In addition, the precise scope of the NSW exemption is also still unclear — at times it has been interpreted quite narrowly to only include documents created during or after cabinet deliberations (in an attempt to prevent the exemption being abused), and at times more broadly. The Ombudsman questions whether the exemption should be narrowed in a similar manner to the Victorian exemption, and its scope clarified.
Other matters examined in the paper include the suitability of the current system of fees and charges for FOI requests, the requirement for government to proactively publish information through statements of affairs, and the number and type of bodies exempt from the FOI regime.
The Ombudsman will accept submissions to the paper until 31 October 2008.