FOLLOWING A comprehensive nine-month review, an independent panel has released a report recommending an overhaul of Queensland’s Freedom Of Information (FOI) regime.
The report, entitled The Right to Information, was officially unveiled by the government-appointed panel last week, and follows the release of a discussion paper earlier this year.
On a broader level, the report proposes a shift from a “pull model”, in which information is disclosed only as a response to specific individual requests, to a “push model”, in which agencies proactively make information publically available.
One of the report’s specific central recommendations is a significant redraft of the “Cabinet exemption” — currently a blanket rule placing any document taken into Cabinet outside the reach of FOI requests.
This exemption — which has become incrementally broader in scope since the implementation of the Freedom of Information Act 1992 (QLD) (the Act) — has been criticised on the basis that it is being abused by ministers who take documents into Cabinet for the sole purpose of protecting them from disclosure.
“It is difficult to justify — by reference to the purpose of the Cabinet exemption — a scheme that allows ministers to take documents into the Cabinet room for no other purpose than to avoid them being accessible through FOI,” the report states.
“The very existence of this bolthole sends the wrong message to public servants about the desirability of openness.”
The President of the Queensland Law Society, Megan Mahon, is particularly critical of how the current “catch-all provision” is being abused and she supports the proposed redraft. “Generally, as this has been publically acknowledged by [Queensland Premier Anna Bligh], there has been a slavish overuse of the Cabinet secrecy provision,” Mahon said. “This, in turn, has lead to a culture of secrecy in the public service.”
To address this concern, the report recommends a redrafting of the exemption so that disclosure would be dependent on the consequences on disclosure of the particular document, rather than purely on its status as a Cabinet document.
The report also recommends eradicating a number of other exemptions which currently exist in the Act, which create a prima facie case against disclosure for documents falling under them. These exemptions, the report says, “downgrade” the role of public interest.
The report also proposes a revamp of the system of “public interest” tests which govern the circumstances under which government information will be released under the Act.
The Act currently contains several different public interest tests which have varying standards for disclosure, and the report recommends replacing these with a single test in the form which states: “access is to be provided to a matter unless its disclosure, on balance, would be contrary to the public interest”.
The report also recommends listing the essential features of public interest relevant to FOI in the amended legislation, which, according to the report, will make it easier for applicants to determine whether their application has been properly assessed on public interest grounds, and easier for decision-makers to identify relevant public interest factors that need to be taken into account.
According to Mahon, this reform would constitute a “radical departure” from the current system.
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