Strengthening

trust in Government
...everyone’s right to know

Review of the Freedom of Information

Act 1991 Directions Paper

Department of Justice
 purpose of the paper
The purpose of this paper is to:

• promote discussion in the community about the right to know and a new direction for sharing
information with the Tasmanian Community; and

• seek the views and obtain written submissions from interested persons or organisations.

The paper has been developed following a period of consultation and therefore proposes one model for
consideration, however it is hoped that responses to the paper will comment on the appropriateness of
the model, or suggest alternative models.

The Department will carefully consider all submissions in developing new legislation.

how to respond
to the paper
The Paper may be accessed on the
Department of Justice website at: http://
www.justice.tas.gov.au

If you require copies of the paper in

alternative formats, please contact the
Project Manager on 6233 6315.

Please ensure that your submission

reaches the address below by the close
of business on the 8th of May 2009.

Submissions should be forwarded to:

Dale Webster
Project Manager
Copyright © State of Tasmania – Department of Justice Review of the Freedom of Information
Act,
ISBN:
978-0-9806330-0-9: Strengthening trust in Government - everyone’s right to know – hard copy Department of Justice,
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This work is copyright, however material from this publication may be copied and published by State
or
or Federal Government Agencies without permission of the Department on the condition that the
meaning of the material is not altered and the Tasmanian Department of Justice is acknowledged
e-mail:
as the source of the material. Any other persons or bodies wishing to use material must seek dale.webster@justice.tas.gov.au
permission.
F O R E WO R D

In August 2008 the Premier, David Bartlett, announced a ten point plan to strengthen trust in democracy and political
processes in Tasmania.

This agenda includes a review of the Freedom of Information Act 1991 with a view to improving transparency in the
operations and decision making processes of Government through better access to information for all Tasmanians.

The review is also timely in regards to modernising the Act to better reflect the changing times in which we live and
work. For instance when FOI was first established in Tasmania in 1991 we were at the dawn of the digital information
age, access to computers was limited, the internet didn’t exist in Tasmania, emails were not part of normal government
communication and the sophisticated information management tools we use now, were not available.

Therefore, with improved information flow and increased community expectations around transparency, the old legislative
framework is arguably no longer relevant or appropriate.

In recent times both the New South Wales and Queensland Governments have reviewed the operations of their
respective Freedom of Information Acts. We are using information and reports collected through their reviews to help
inform our review.

We have also engaged some of the best minds available to provide expert advice to inform this process, including
Dr David Solomon – who undertook the review within Queensland; Rick Snell a lecturer in Administrative Law at
the University of Tasmania Law School; Mr Simon Allston, Ombudsman; and Mr Len Armsby, Director of Legislation
Development and Review within the Department of Justice.

The Review Team lead by Mr Dale Webster has already consulted with FOI users within government, the media and the
community and worked with the Expert Panel to develop the framework presented in this paper for wider consultation.

I commend to you this directions paper for your information and input – Tasmanians have a Right to Information and this
paper presents a framework to deliver that.

This document represents the thinking of the people who have participated in the review to this point and I would
encourage all to consider what their expectations of Governments are in relation to transparency and provide those
perspectives to the review team during the coming weeks.

Lara Giddings MP
Attorney General

Strengthening trust in Government - everyone’s right to know.

contents
1. Those Involved 1
1.1 Acknowledgement 1
1.2 Project Leadership 1
1.3 Review Team 1
1.4 Expert Advisors 1

2. Executive Summary 2
2.1 Disclosure 2
2.2 New Act 2
2.3 Ombudsman 2
2.4 Administration 3
2.5 Summary of Recommendations 3

3. Introduction 7
3.1 The Universal Declaration of Human Rights 7
3.2 Background to the present Review 7
3.3 Why do we have FoI laws? 8
3.4 What is the purpose of FoI legislation? 9
3.5 Use of Freedom of Information in Tasmania 9
3.6 This Review 11
3.7 The International Experience 12
3.8 A Way Forward 12

4. The case for a new Act 14

4.1 A New Start 14
4.2 Complex and Confusing 14
4.3 Changed Circumstances 14
4.4 What’s in a name? 15
4.5 Accessing Personal Information 16
4.6 Fitting it all together 17
4.7 Transfer of Information to the Archives Office 17
5. Object of the Right to Information Act 18
5.1 Current Object of the Freedom of Information Act 1991. 18
5.2 Do we need a different objects? 18

6. What is information? 21
6.1 Documents or information? 21
6.2 Retrieval 22
6.3 Metadata 23
6.4 Back Up Systems 24

7. Scope of the RtI Act 25

7.1 What is government? 25
7.2 The status of Government Business Enterprises 25
7.3 Tribunals 26
7.4 Non Government Sector 27

8. Public Interest 30
8.1 Can you define the ‘public interest’ 30
8.2 Factors to be considered when assessing the Public Interest 32

9. Pushing Out Information 33

9.1 Types of Disclosure 33
9.2 Benefit or Burden 34
9.3 Proactive Disclosure Model 36

10. Assessed Disclosure 38

10.1 Application 38
10.2 Fees 39
10.3 Refining the application 42
10.4 Timeframe for processing 42
10.5 Transfer of Applications 44
10.6 Internal Review 44
10.7 Reasons for Determination 44

11. Exemptions 46
11.1 Exemptions in the FoI Act 1991 46
11.2 Exemptions in the RtI Act 2009 46
11.3 10 year exemption 47
11.4 Cabinet and Internal Working Documents 47
11.5 Information from other Jurisdictions 48
11.6 Legal Professional Privilege 49
11.7 Consultation with a Third Party 49
11.8 Exclusion of a Public Authority 50
11.9 Exemptions in other legislation 50
11.10 The “Other” Public Authorities 50
11.11 Process for Applying exemptions 50
11.12 Summary of RtI Exemptions 51
11.12 Copyright 53

12. Role of the Ombudsman 54

12.1 Understanding the Right to Information Act 54
12.2 External Review 44

13. Refusal of Applications 58

13.1 Substantial and unreasonable diversion of resources 58
13.2 Repeat Applications 60
13.3 Vexatious applicants 61

14. Governance 62
14.1 Decision Makers 62
14.2 Reporting 63
14.3 Offences 63

15. Major References 64

Appendix One 65
Submissions Received: 65

Appendix Two 67
Request for Information 67

Appendix Three 69
President Obama’s Statement to bureaucracy
on the US Freedom of Information Act 69
1 T H O S E I N VO LV E D
1.1 Acknowledgement
In excess of 100 individuals have given
time to this project, through issues
forums, working groups, via written
submission, and by making themselves
available for individual consultation.
The review team would like to thank
this range of contributors; they have
pushed us forward in the preparation
of the concepts in this paper. All
contributors have been extremely
generous in the giving of their time
and energy and this paper is an
amalgam of their contributions and
reflects a high degree of consensus on
a need to move the “right to know”
forward into a new era.
The strategic decisions have been
sponsored by the Secretary of the
Department of Justice, Lisa Hutton.
The Project Manager for this review
is Dale Webster, who is based in
the Office of the Secretary in the
Department of Justice.
1.3 Review Team
The Project Manager is assisted
by Legislative Policy Officer, Sonia
Weidenbach and also has access
to a Graduate Research Officer,
Nicola Norton, from the Legislative
Development and Review Division of
the Department of Justice. Project
quality assurance is provided by
Katherine Drake who is the Manager,
Policy in the Monetary Penalties
Enforcement Service.
1.4 Expert Advisors
Mr Simon Allston (Ombudsman), Dr
David Solomon AM (Independent
Consultant), Mr Rick Snell (Senior
Lecturer, UTAS), Ms Ruth McArdle,
(Archives Office of Tasmania), Mr Len
Armsby (Department of Justice) were
provide with a late draft of this paper
and invited to provide detailed advice
on its content to the Project Manager.
The advice received resulted in a re-
examination of the paper.

1.2 Project Leadership

This project forms a key part of the
Tasmanian Government’s commitment
to strengthening trust in democracy
and political process in Tasmania. The
government has indicated its firm
commitment to improving access to
information held by Government.
The Premier has asked the Attorney-
General, Lara Giddings, to ensure that
this project is treated as a priority. This paper should not be read as reflecting the views or opinions
This Project was initiated and given of any one contributor or expert advisor and is the work of the
direction by the Attorney General and review team on behalf of the Department of Justice.
Deputy Premier, Lara Giddings MP.

Strengthening trust in Government - everyone’s right to know.

1
2 EXECUTIVE SUMMARY
The review team have concluded that
there is a significant need for change
to the Tasmanian system for handling
the release of information. Change
is supported by all contributors and
there is a high degree of consensus on
the direction of that change.
The new system recommended in this
paper has four key elements:
• Increased publishing of core
information to improve
accountability and improve public
debate;
• A new Right to Information (RtI)
Act 2009 to replace the current
Freedom of Information (FoI) Act
1991;
• An enhanced role for the
Ombudsman in relation to the
both review and monitoring of
the release of information; and
• Improved administrative processes
for dealing with the release of
information
2.1 Disclosure
The Tasmanian Government is
committed to open and transparent
government and as such has
committed itself to a right to
information approach espoused in the
2
recent Queensland review1 of that
state’s Freedom of Information Act.
This approach, which the Queensland
review consistently refers to as a
“push” model, mandates for proactive
release of information. This focus on
disclosure will require a combination
of both legislative and cultural change.
2.2 New Act
The consistent message amongst
users of the present Act is that it is
complex and difficult to apply and
its intersection with other pieces
of legislation has lead to levels
of uncertainty. To unravel this
complexity and to assist in the change
of focus we are recommending a new
Act with the following broad features:
• Drafted in plain English;
• Includes an overarching and
detailed public interest test;
• Provides for a presumption of
disclosure;
• Provides clear tests for the minor
number of exemptions; and
• Deals with the records of
Government which contain non-
1 The Right to Information: Reviewing
Queensland’s Freedom of Information Act, the
State of Queensland, 2008
Strengthening trust in Government - everyone’s right to know.
personal information and with
third party requests for personal
information.
In line with the last of these features
we also recommend that requests
for disclosure of an individual’s
own personal information should
be dealt with in the Personal
Information Protection Act 2004, a
recommendation which features in
both the Queensland report2 and a
recent NSW report.3
2.3 Ombudsman
As a small jurisdiction Tasmania
has a tradition of combining roles/
jurisdictions across a number of justice
areas. The review team recommends
that the Ombudsman continue to
be the review body for the Right
to Information Act and that the
new Act specifically provide for the
Ombudsman to:
• Publish decisions of note as a
guide to interpretation of the Act;
• Prepare and maintain practice
guidelines on the application of
the legislation;
2 Ibid, 47
3 Opening up government: Review of
Freedom of Information Act 1989, NSW
Ombudsman, 2009, 7
• Have greater flexibility and
increased powers in determining
reviews; and
• Conciliate applications for review
with agreed outcomes having
the force of a decision of the
Ombudsman.
2.4 Administration
To effect the type of changes
envisaged by the Tasmanian
Government when it announced this
review with reference to the work of
the Queensland review it is apparent
that public authorities need to update
their administrative processes to
better cope with this new reality.
Features specifically targeted in the
review are:
• Increased disclosure outside of
the legislative scheme;
• Improvement of the skills and
knowledge of authorised officers;
• Standardised and improved
application processes; and
• Better information about the
process made available to the
Tasmanian community.
Records and information management
are an ever evolving feature of
all public authorities. They have
improved markedly in the last decade,
with further plans for change in a large
number of public authorities. Future
change needs to take into account
this move to a proactive disclosure
model. Many of the benefits of the
recommendations in this paper are
predicated on a dynamic record
management system and as a result
the impetus for change to these
systems needs to be maintained.

2.5 Summary of Recommendations

Number Recommendation

THE CASE F OR A NE W ACT:

A new “plain English” Act, to be known as the Right to Information Act 2009 (RtI Act), be prepared for consideration
1
by the Tasmanian Parliament.

That the Personal Information Protection Act 2004 be amended to provide for a right to access and a right to amend
2
personal records as currently provided for in the FoI Act 1991.

That the Right to Information Act 2009 use terminology which allows for clarity of interpretation between the RtI Act
3
and the Archives Act 1983 and Personal Information Protection Act 2004.

That the Right to Information Act 2009 provide that information deposited with the Archives Office of Tasmania, by
4
public authorities, is subject to access under the RtI Act.

OB J ECT O F THE RIGH T TO INFORMAT IO N AC T :

The Object clause of the Right to Information Act in Tasmania be based on the FoI Act 1991 but amended to include
a clear statement that:
• information collected by public authorities is collected for and on behalf of the Tasmanian people and is a state
5
resource;
• public authorities have an obligation to provide information to the people of Tasmania about the operations of
Government, and the formal processes in the Act for assessed disclosure are a last resort.

The Object clause of the Right to Information Act in Tasmania be based on the FoI Act 1991 but amended to:
• delete the reference to a limitation on the general right of access imposed by exceptions and exemptions; and
6
• delete the reference to a right to amend personal information (which will now be a function of the Personal
Information Protection Act).

WHAT I S I N FORMATION:
The Right to Information Act 2009 should define the terms ‘record’, ‘record of a Minister’, and ‘record of a public
7 authority’ in a similar way as those first two terms that are defined in the FOI Act 1991, but the definition should
exclude information ‘held on agency’ for third parties.

Strengthening trust in Government - everyone’s right to know.

3
 The Right to Information Act 2009 provide for the release of records stored in an electronic form where:
• they can be produced using the normal computer hardware and software and technical expertise of the public
8
body; and
• producing them would not interfere unreasonably with the operations of the public body.

The Right to Information Act 2009 provide for the release of metadata, when specifically requested. However, if it is
stored in an electronic form release should only occur where:
9 • they can be produced using the normal computer hardware and software and technical expertise of the public
body; and
• producing them would not interfere unreasonably with the operations of the public body.

The Right to Information Act 2009 provide that public authorities are not required to search or recover data from back
10
up systems after it has been culled in accordance with an approved disposal schedule.

SCO PE O F THE RtI ACT:

The Right to Information Act 2009 apply to public authorities and the approach to defining the term ‘public authority’
11
should be consistent and similar to the inclusive definition in the Ombudsman Act 1978.

The Right to Information Act 2009 exclude certain information related to the deliberative functions of Tribunals and
12
other like bodies from the provisions of the RtI Act.

The Right to Information Act 2009 provide for the release by a public authority of performance and evaluation reports,
13 or the like, required to be provided to a public authority by a funded private organisation under the terms of an Act
or Agreement.

PU B LI C I N T E RE S T:
The Right to Information Act 2009 include a clear statement that disclosure of information must occur unless its
14
disclosure, on balance, would be contrary to the public interest.

The Right to Information Act 2009 include a schedule providing a non-exhaustive list of the factors which must be taken
15
into account in assessing the public interest.

PU SHI N G O UT INFORMATION:
The Right to Information Act 2009 provide for and define four types of information disclosure, namely required,
16
routine, active and assessed disclosures.

The Right to Information Act 2009 provide that assessed disclosure is a last resort and may be refused if the
17 information is, or in the case of required or routine disclosure will be, otherwise available as a required, routine or
active disclosure.

The Right to Information Act 2009 provide that the Ombudsman is to publish guidelines on the process of all four
18
types of information disclosure.

The Right to Information Act 2009 provide for a limited level of protection for disclosure of information in all four
19 defined categories and for similar protection of assessed disclosure only as is provided in section 53 of the FoI Act
1991.

ASSESSED DISCLOSURE :
The Right to Information Act 2009 provide:
• for the minimum prescribed information to be available to an applicant about the public authorities assessment
20 procedures for applications for assessed disclosures of information;
• for the minimum prescribed information to be provided in an application for assessed disclosure of information; and
• for a public authority to take reasonable steps to assist an applicant in making a compliant application.

The Right to Information Act 2009 provide for a fee structure for the release of information, following an application
21 for assessed disclosure, similar to the Freedom of Information Act 1991, except that no fees should be levied for the
release of information where the time spent in finding the record is less than 2 hours.

Strengthening trust in Government - everyone’s right to know.

4
 The Right to Information Act 2009 provide for an application fee of 25 fee units (currently $32), which may be waived
22 where the applicant is impecunious or where the applicant is a Member of Parliament acting in connection with her or
his official duty.

The Right to Information Act 2009 provide that the application fee must be paid, or a decision to waive the fee must
be made, prior to acceptance of an application for assessed disclosure of information and that all other fees must be
23
paid, or a decision made to waive the fees, prior to release of information following determination of an application
for assessed disclosure of information.

The Right to Information Act 2009 provide for a negotiation period during which public authorities may work with
24 the applicant to refine or redirect their application for assessed disclosure of information. This negotiation is not
mandatory and if undertaken it is to be completed expeditiously and within a maximum of ten (10) working days.

The Right to Information Act 2009 provide for an application for assessed disclosure of information to be determined
25
as soon as practicable but in not more than 20 working days following the acceptance of the application.

The Right to Information Act 2009 provide for an extension of the maximum 20 working days timeframe for
determination of an application for an assessed disclosure:
26 • by agreement with the applicant; or
• if agreement cannot be reached and the application is complex and/or voluminous in nature and in the opinion of
the public authority the absence of agreement is unreasonable then by application to the Ombudsman.

The Right to Information Act 2009 provide for a maximum period of 10 working days for third parties to comment on
27
an application for an assessed disclosure of information.

The Right to Information Act 2009 provide for an automatic extension of the maximum period for determining an
28 application for an assessed disclosure to 30 days where there is a need to consult with third parties about the release
of information.

The Right to Information Act 2009 provide for similar provisions for transfer of an application for an assessed disclosure
29
of information as are in section 14 of the FoI Act 1991.

The Right to Information Act 2009 provide for similar provisions for internal review of a determination of an application
30 for an assessed disclosure of information as are in section 47 of the FoI Act 1991. Internal review should not be a
precondition of external review.

The Right to Information Act 2009 provide for similar provisions for the preparation of reasons for decision as are in
31
section 22 of the FoI Act 1991.

The Right to Information Act 2009 provide for the Ombudsman, in considering a review in accordance with the RtI
Act, to require a public authority to provide the Ombudsman with a compliant statement of reasons for decision as
32
soon as practicable, but in no more than 10 working days after receiving notification of the requirement from the
Ombudsman.

E X EMPT I O N S :
33 The Right to Information Act 2009 provide for exemptions as outlined in Table 9 of this paper.

RO LE O F T HE OMBUD S MA N:
The Right to Information Act 2009 provide for the Ombudsman to prepare and publish guidelines on the operation of
34
the RtI Act.

The Right to Information Act 2009 provide for an expanded right to review (compared to the FoI Act 1991) and for
35 increased powers for the Ombudsman on review (compared to the FoI Act 1991) as outlined in Table 10 of this
paper.

REF U SAL O F A PP L ICATIONS :

The Right to Information Act 2009 provide for similar provisions for refusal of an application for an assessed disclosure
36
of information as are in section 20 of the FoI Act 1991.

Strengthening trust in Government - everyone’s right to know.

5
 The Right to Information Act 2009 include a Schedule providing a non-exhaustive list of the factors which must be
37
taken into account in refusing an application as it would result in a substantial and unreasonable diversion of resources.

The Right to Information Act 2009 provide for a public authority to be able to refuse an application for the assessed
38 disclosure of information on the basis that it is a repeat application. The decision should be subject to review on
application to the Ombudsman.

The Right to Information Act 2009 provide for the Ombudsman to issue guidelines on the factors to be considered
39 when determining to refuse an application for the assessed disclosure of information on the basis it is a repeat
application.

GOVER N AN C E :
The Right to Information Act 2009 provide for three statutory roles within each public authority, namely the principal
40
officer, the responsible officer and the authorised officers.

The Right to Information Act 2009 provide that Authorised officers are appointed for renewable terms of up to 3 year
41 and that prior to appointment the Principal officer is to ensure that the officer s/he is appointing has the skills and
knowledge to make determination on application for assessed disclosure of information.

The Right to Information Act 2009 provide that decision makers making decisions in accordance with the Act are
42
independent decision makers and are to act impartially in making those decisions.

The Right to Information Act 2009 provide for three levels of reporting:
• The Secretary of the state service agency administering the Right to Information Act provide an annual report to
Parliament on the operation of the Act.
43 • The principal officer of each public authority provide information on information available from her/his authority and
also on the operation of the Act in her/his authority as part of her/his annual report.
• The Ombudsman provide to Parliament a report on the Right to Information Act and its application from the
perspective of the review body in her/his annual report.

The Right to Information Act 2009 provide for it to be an offence to:

• Obstruct, unduly influence or interfere with an authorised officer, an officer determining an internal review or the
44 Ombudsman and his or her staff in the exercise of the power to make decisions in accordance with the RtI Act.
• Deliberately or improperly fail to disclose information which is the subject of an application for an assessed
disclosure of information, other than in accordance with the RtI Act or another Act

Strengthening trust in Government - everyone’s right to know.

6
3 INTRODUCTION
3.1 The Universal Declaration of
Human Rights
Article 19.
“Everyone has the right to
freedom of opinion and
expression; this right includes
freedom to hold opinions
without interference and
to seek, receive and impart
information and ideas through
any media and regardless of
frontiers.”
It is inherent to Article 19 that
freedom of expression is meaningless
without the freedom to be informed.
Within the context of a Westminster
democracy the “essence of
representative democracy is
informed consent, which requires
that information about government
practices and policies be disclosed.
And in democracies, by definition,
information about government
belongs to the people, not the
government.”4
4 Florini, Ann, The Right to Know,
Transparency for an Open World, Columbia
University Press, 2007, 3
Strengthening trust in Government - everyone’s right to know.
3.2 Background to the present
Review
Strengthening trust in democracy is a
key agenda for Premier David Bartlett
and the Government. This agenda
was announced by the Premier in
August 2008. A comprehensive plan
to strengthen trust in democracy and
political processes in Tasmania has
been submitted to the Joint Select
Committee of Parliament on ethical
conduct.
Included in the Government’s Ten
Point Plan are:
1. A review of the Freedom of
Information Act.
2. A review of the legislation which
currently protects whistleblowers.
3. Approved Protocols and Rules for
Judicial appointment.
4. Improvements in governance and
accountability in Government
Business Enterprises and Financial
Management Frameworks.
5. A register of lobbyists – those
seeking to register will be
required to adhere to a lobbyist’s
code of conduct.
6. Codes of conduct for members
and ministers – a new code of
conduct for all members of the
Parliament and a strengthened
code of conduct for ministers.
7. A code of conduct for ministerial
and parliamentary staff.
8. Training, advice and induction for
all members, ministers and staff to
ensure a very high ethical standard
is maintained.
9. The offices of the Auditor
General, the Ombudsman and
Director of Public Prosecution
will be subject to a review of
resources. This is to ensure they
have adequate resources to carry
out duties with diligence and the
appropriate level of accountability.
10. A recommendation to clarify
the Police Act and create a
separate investigation power –
there needs to be clarification
on the relationship between
the Commissioner of Police,
the Premier and Minister of
Police, as well as the ability of
ministers to direct, or not direct,
the Commissioner in relation to
investigations.
The Government plans to implement
all of the initiatives and to respond
to the various reviews by the end of
2009.
7
The Government’s submission to the
joint select committee recommends
the development of an Ethics
Commission with investigative powers
to be enshrined in legislation. The
Government will look very closely at
the committee’s findings when they
report back in the months ahead and
use that report as the basis for setting
up an Ethics Commission.
Hence the review of the Freedom of
Information Act 1991 must be viewed
as part of a package of reforms
which will improve transparency and
accountability across Government.
3.3 Why do we have FoI laws?
Throughout the period from the
mid 1940s to the early 1990s there
was considerable debate around the
right to know and public access to
government records, and increasingly
democratic governments saw the
need to open up records and to show
the inner workings of government.
In the early 1980s a Campaign for
Freedom of Information (FoI) was
initiated in the United Kingdom. The
campaign summed up the atmosphere
in that democracy prior to the
introduction of FoI laws:
“What accounts for our
secretive culture? In part
it is simply administrative
convenience: releasing
information involves more
work than leaving it in the
files. But secrecy often has a
more specific cause. It protects
decision-makers from challenge,
shields policies from criticism,
8
conceals mistakes or the
arbitrary exercise of power,
allows government to pursue
objectives which may not enjoy
public support and avoids
pressure for action which the
government wishes to resist.
The nature of our politics
encourages this. Government
is under constant scrutiny from
an opposition whose full time
job is to expose ministers’
failings. Ministers in turn
devote themselves to denying
ammunition to their critics. The
frank admission that a mistake
has been made or that a policy
has failed has become almost
unthinkable. In this corrupting
atmosphere, concealing
the evidence is seen not as
dishonesty but as a necessary
tool of effective government.
Openness may be difficult, but
it has its advantages. Exposing
proposals to early scrutiny
allows government to draw on
expertise beyond Whitehall.
There is a greater chance
that weak proposals will be
questioned and amended -
or even thrown out - if the
discussion takes place before
ministers have finally committed
themselves, and can change
their minds without loss of
face. The fact that proposals
have been developed openly
may also lead to greater public
support.
But a government which hastily
commits itself to ill-thought
Strengthening trust in Government - everyone’s right to know.
out proposals - to implement
an untested doctrine, boost
the popularity of a floundering
minister, or respond to the
latest tabloid outcry - will not
easily tolerate scrutiny. The
policies may generate still more
secrecy, to prevent the lack of
analysis, failure to anticipate
problems or damaging results
becoming apparent.”5
In 1982 Australia became the first
Westminster style democracy to
introduce FoI legislation, and over the
following decade or so all States and
Territories followed suit. Our style of
government gives the people ultimate
responsibility for Government via the
electoral process and FoI laws brought
about a fundamental change to that
relationship by improving the ability
of the people to make an informed
choice.
“Information is the currency
that we all require to
participate in the life and
governance of our society. The
greater the access we have to
information, the greater will
be the responsiveness of our
governments to community
needs, wants, ideas and
creativity. Alternatively, the
greater the restrictions that are
placed on access, the greater
the feeling of ‘powerlessness’
and alienation.”6
5 www.cfoi.org.au/whyfoi - unattributed
article - Why Britain needs a Freedom of
Information Act
6 Commonwealth Ombudsman Annual
Report 1994-95 AGPS Canberra 1995, 33
In the current context of this Review,
a stronger Freedom of Information
legislative framework is a key initiative
of the Tasmanian Government ten
point plan to strengthen trust in
democracy, announced in August
2008. The Tasmanian Government
has stated that it wishes to use
Freedom of Information as one
strategy in its effort to make the
Government and its processes more
open and transparent and therefore
more accountable to the Tasmanian
people.
3.4 What is the purpose of FoI
legislation?
“The one thing people need
in trying to protect themselves
against an overpowering
bureaucracy, correct an injustice
or bring about change of any
kind is information. Without
it they are powerless. With it,
they can argue their case on
something approaching equal
terms.”7
The generally accepted purpose of
Freedom of Information is to make
the business of government open
and accountable by the creation of
a right to access information held by
government.
Specifically this has come to mean
that FOI has provided a process which
allows people to apply for and under
most circumstances:
• access information within the
government’s possession; and
• amend information that relate
7 www.cfoi.org.au/whyfoi - unattributed
article - Why Britain needs a Freedom of
Information Act
Strengthening trust in Government - everyone’s right to know.
to their personal circumstances
which are incomplete, incorrect,
out-of-date or misleading.
Limits on this access are generally
accepted as only those limits which
are necessary to protect the public
interest and/or the privacy of
individuals.
FoI laws are also seen as improving
the quality of decision making in public
authorities as it enables the public to
be better informed about the decision
making process, how it affects them
and to have a more complete picture
of the criteria that will be applied in
making decisions.
3.5 Use of Freedom of
Information in Tasmania
The number of applications for
information received has been
relatively stable for the last three
years. The vast majority of
applications received in accordance
with the legislation are processed
by the 10 core government
agencies (85.3% of 1786 requests in
2006/2007) and of those received by
government agencies the vast majority
are received by just 3 agencies:
• Department of Police and
Emergency Management (33.4%
of all requests);
• Department of Justice (24.8%);
and
• Department of Health and
Human Services (13.5%).
In 2006/2007 Local Government
accounted for 9% of all applications
lodged, with the Hobart City
Council receiving over a quarter of
those applications (45 of 161 local
government applications), which is
well over three times the number
lodged with each of Launceston City
Council (11), Clarence City Council
(12), Glenorchy City Council (13) and
Kingborough Council (11).
The remaining applications (5.7%
or 102 of 1786 applications) are
spread across 21 of the 59 prescribed
authorities covered by the legislation.
Forestry Tasmania received 26 of
those applications, the Forest Practices
Authority 19 and the Motor Accident
Insurance Board 11, with no other
authority receiving greater than eight.
Of those matters determined in
2006/2007, only 7.6% of requests
were denied, 36.7% were granted
access in full and 30.7% granted part
access, with the remaining refused,
withdrawn or transferred. Including
those dealt with outside the FoI Act,
over 56% of requests made resulted
in full disclosure of the information
requested and over 86% resulted in
some level of disclosure.
Seventy five (75) requests for review
were lodged with the Ombudsman,
which represents around 4% of
all applications made under the
legislation or 9.5% of applications
where full disclosure was not granted.
Of the 675 exemptions which
were applied to determinations in
2006/2007, Section 30 (information
affecting personal privacy) was the
most commonly used (31% or 332
uses). Section 27 (internal working
information) (13.8%), Section 28 (law
enforcement information) (11.4%)
and Section 33 (information obtained
in confidence) (7.5%) are the next
three most used.
9
Table 1:

K ey Stati sti cs – 2003/2004 to 2006/2 0 0 7 1 To t a l N u m be r o f :

2003/04 2004/05 2005/06 2006/07
Requests received (applications under FoI) 1442 1746 1766 1786
Requests resolved outside the FoI Act n/a n/a 316 349
Requests decided (as applications under FoI) 1209 1576 1383 1262
Requests that took less than 30 days 938 1317 1117 1025
Requests that took more than 30 days 280 267 299 280
Requests granted in full and/or part (outcomes) 872 1019 850 850
Requests where information was denied or other refusals 489 305 294 110
Number of exemptions used 532 768 699 675
Main reasons for refusal by agencies ss 9 & 30 ss 29 & 30 ss 27 & 30 Ss 9 & 30
Requests for amendment of personal information 15 19 6 13
Requests for review finalised by the Ombudsman 57 157 57 75
8

Table 2:
F r eedom of In f o rmatio n Req u ests Re c e i v e d a n d D e c i de d – S u m m a ry – 2 0 0 6 /2 0 0 7 2
Received Decided Resolved outside FoI
Government Departments 1523 1032 340
Prescribed Authorities 102 85 1
Councils 161 145 8
TOTAL 1786 1262 349
9

Table 3:
O utcom e of Requ ests – S u mmary – 20 0 6 /2 0 0 7 3
Determined Full access Part Access Denied Transferred Withdrawn
Government Departments 1032 334 339 76 30 34
Prescribed Authorities 85 31 30 20 5 3
Councils 145 98 19 14 2 6
TOTAL 1262 463 388 110 37 43
10

Table 4:
Mai n exem ptio n s c laimed – Su mmary – 2 0 0 6 /2 0 0 7 4
s.24 s.27 s.28 s.29 s.30 s.31 s.32 s.33
Government Departments 16 84 70 34 307 28 3 36
Prescribed Authorities 0 6 1 7 13 4 6 9
Councils 0 3 6 3 12 3 1 6
TOTAL 16 93 77 44 332 35 10 51
11

8 Source: Freedom of Information Annual Report 2006/2007, Department of Justice, 2008, 3

9 Ibid, 4
10 Ibid, 10
11 Ibid, 17

Strengthening trust in Government - everyone’s right to know.

10
A complete statistical report of
the operation of the Freedom of
Information Act 1991 is prepared and
tabled in Parliament on an annual
basis, in accordance with section 56 of
the Act. The report is available via the
Department of Justice website at:
http://www.justice.tas.gov.au/
legislationreview/foi_act_1991/
annual_reports
3.6 This Review
In announcing the review of the
Tasmanian Freedom of Information Act
1992 in August 2008 the Tasmanian
Government indicated its desire
to adopt greater openness and
accountability and asked the review
team to examine the work of the
Independent Review Panel which had
recently completed a review of the
Queensland Freedom of Information
Act.
The Queensland Independent Review
Panel’s report12 argues for a first
principles change to the way we view
Freedom of Information:
“The result is not merely an
upgrade of the legislation,
but a new model. It includes
some unique features that
are designed to overcome
problems that appear to be
inherent in most systems. Not
everything is new – there are
many sections of the legislation
that would not be changed at
all – but in a number of key
12 The Right to Information: Reviewing
Queensland’s Freedom of Information Act, the
State of Queensland, 2008
Strengthening trust in Government - everyone’s right to know.
areas the changes proposed are
quite profound.” 13
The main features of the Independent
Review Panel’s report included:
• Government should provide
information to the public as a
general principle - with FOI as an
option of last resort e.g. Cabinet
material published on the internet
as a matter of course.
• Using a back to basics approach
– need a very good reason not
to adhere to underlying FOI
principles.
• Personal information should
be accessible to the people it
concerns without the need for
FOI requests.
• If material is not covered by a
limited number of exemptions
then apply a public interest test,
that is, access to material should
be unimpeded unless contrary to
public interest.
• FOI officers should be provided
with definitions of public
interest factors that they can
take into account in making
determinations.14
An examination of the Independent
Review Panel’s report also led
to a conclusion that not all parts
of our current legislation would
need amendment and not all
13 Ibid, 1
14 Dr David Solomon’s address to FOI
Issues Identification Forum December 2008,
as reported in the Report of the Issues
Identification Forum, PDF Management Services
and Department of Justice, December 2008,
2-3
recommendations of the report
were applicable to our context. For
instance, Tasmania has already enacted
a Personal Information Protection Act
consistent with the recommendation
in the Report.
The review team also considered a
number of other reports referred to
in the Independent Review Panel’s
report, along with more recent
reports and information acquired
from a myriad of sources.
The review team were given a broad
mandate by Government to consider
Freedom of Information law from a
range of perspectives and to consider
virtually every aspect of FoI and its
way forward. This was reflected in
the endorsed project plan:
“The objective of the FoI
Review Project is to develop:
1) A cost effective
legislative and administrative
framework which provides
balance between the right
of Tasmanians to access
information held by their public
bodies and the need to exempt
information from release where
the outcome of the release
is likely to be detrimental or
prejudicial to the broader public
interest, or to the private or
business affairs of members of
the Tasmanian Community;
2) A cost effective legislative
and administrative framework
which provides for the
complex and variable storage
of information and information
management within the range
11
 of public bodies covered by
the framework, whilst also
providing clarity and simplicity
to Tasmanians wishing to access
information;
3) A cost effective legislative
and administrative framework
which provides for fairness in its
application; and
4) The manuals and training
materials which support the
legislative and administrative
framework.” 15
The process followed by the review
team to develop this directions paper
included:
• literature searches;
• detailed examination of ALRC/
ARC report of the Review of
the Federal FoI Act and the
Queensland and New South
Wales review reports and
Queensland draft Bill;
• issues identification forums;
• formation of working groups,
tasked with detailed examination
of issues identified at forums;
• individual discussion with
stakeholders about issues;
• examination of submissions
received (call for submissions
opened in November 2008 for 12
weeks); and
• expert advisor critique.
15 Review of Freedom of Information Act
Project Business Plan, Department of Justice,
2008, 6
12
3.7 The International Experience
A significant part of preparing
this paper was to examine the
international experience. Books by
Anne Florini16 and Alasdair Roberts17
were major references in doing this.
The review team also prepared a
table of international legislation and
in preparing our recommendation
we examined the system we were
building by comparing it with the
information we gathered for the table.
With over 70 countries now having
Freedom of Information laws this
table is in itself a significant document
and is available on the Department of
Justice website,
www.justice.tas.gov.au .
3.8 A Way Forward
Since commencing this review the
New South Wales Ombudsman has
concluded a review of that state’s FoI
legislation18, and that report reflects
the movement to proactive disclosure
which is the main thrust of the
Queensland report.
Effectively, these two reports were
reflected in the discussion in the
working groups convened for this
review and the conclusion which the
review team have drawn from the
working groups is that Tasmania’s
legislation needed to take account of
16 Florini, Ann, The Right to Know,
Transparency for an Open World, Columbia
University Press, 2007
17 Roberts, A, Blacked Out: Government
Secrecy in the Information Age, Cambridge
University Press, 2006
18 Opening up government: Review of
Freedom of Information Act 1989, NSW
Ombudsman, 2009
Strengthening trust in Government - everyone’s right to know.
disclosure at four levels:
• Required Disclosure; that is the
disclosures required by law or
enforceable under an agreement,
for instance annual reports, the
Report on Government Services
etc.
• Routine Disclosure; that is
the voluntary publishing of
Government Information of
interest to the public, for example
the Department of Health and
Human Services Health Progress
Chart and the Department of
Education Schools Improvement
Report.
• Active Disclosure; that is the
voluntary release of information
upon request. This includes the
release of information which holds
no broad public interest, but there
is no public detriment in providing
the information on request. A
large amount of information is
released on a day to day basis
because someone makes a
request and agencies disclose it
without reference to FoI.
• Assessed Disclosure; that is the
release of information after it has
been assessed against defined
limitations, the onus is on release
unless an agency can prove that
the release would be detrimental
to the public interest.
With the adoption of this approach
to disclosure we are creating a system
where traditional FoI disclosures
become part of an integrated
information management system
that is geared towards increasing the
flow of good quality information to
the public whilst ensuring adequate
safeguards. This contrasts with
the current system which has FoI
disclosure as an exception to the
norm.
A recurring theme from contributors
and during discussions informing the
review is that the Tasmanian legislation
has some strong features and is
essentially sound legislation which
suffers, although not universally, from
a culture which views the legislation as
a means to block disclosure, instead
of a means of encouraging disclosure
within a framework of protection
in limited circumstances. It is this
prevailing culture which must also
be addressed and whilst this can
be aided by revitalised legislation,
the implementation of the new
legislation needs to be supported
with an administrative framework
which demands that public authorities
adopt the legislation as facilitative of
proactive disclosure approaches.
In line with this need to undertake
cultural change it also became
apparent through the review that
an effective system needed to be
supported by an administrative system
which included:
• Leadership commitment; it is
seen as essential that disclosure
of information is integrated into
Agency processes as a subset of
the broader records management
function. Information gathered
and maintained must be of
the highest standard and must
be easily accessible to allow
for effective use. Design of
Strengthening trust in Government - everyone’s right to know.
information tools must follow conciliation processes, improved
these same principles and the timelines, restructured fees and
creation of databases must structured review should all
take into account the need for be part of the administrative
information to be drawn down to framework.
be of use to organisations. These
• Ongoing professional
same developments must also
development; it is important
be seen as available in locating
that key staff have the skills
and compiling information for
and knowledge to adequately
disclosure. In addition, the
implement the legislation, this
continuation of agency reporting
needs to be supported with
of disclosures in annual reports,
the development of easy to use
introduction of performance
guidelines and with the delivery of
audits of records management
training. An accreditation process
and ongoing external monitoring
associated with the appointment
all need to be features of this
of authorised officers will also
renewed commitment.
assist.
• Formalised processes; structured
The structure of this paper broadly
processes, which encourage
follows the structure of the proposed
disclosure other than through the
new Right to Information Act. As it
filtering of traditional freedom
draws heavily on the work done in
of information laws, coupled
recent times in Queensland and New
with easy access application
South Wales, links to the reports
processes, to be used as a last
from these states are available on the
resort. Application forms which
Department of Justice website,
encourage refinement of requests,
www.justice.tas.gov.au .
allowing for negotiation and
13
4 THE CASE FOR A
N E W AC T
4.1 A New Start
“Under the new model we
are proposing, applying for
access to information will be
the avenue of last resort for
members of the public to
obtain government documents
containing nonpersonal
information. It will no longer
be the first port of call as
proactive disclosure should
negate the need to make
formal applications for many
documents.
We believe the most effective
way of achieving a new start
is to adopt a new Act. New
objects and intentions will
therefore need to be drafted
and, critically, there has to be a
cultural shift across government
in favour of the provision of
information”19
This extract from the NSW
Ombudsman’s report sums up the
conclusions of this review. The
Queensland’s Government’s response
to the review in that State has been
to accept the recommendation for
19 Opening up government: Review of
Freedom of Information Act 1989, NSW
Ombudsman, 2009, 33
14
a new start20 and they have created
a new Bill called the “Right to
Information” Bill. (The Queensland
Bill was released for public comment
in December 2008.)
4.2 Complex and Confusing
In forming the conclusion that a
new Act is required the review
team looked at a number of aspects,
the first of which was the ongoing
feedback in submissions, in the
issues identification forum, and in
the working groups that users of the
current Act found the legislation to be
complex and also confusing. Whilst
not many of the written comments
stated this succinctly, the comments
were generally around the need to
clarify this or that provision, the need
to provide support in interpretation
and the time spent around figuring
out what the legislation meant. This
feedback is best summed up by
the words of a former state service
agency Secretary, Peter Hoult:
“In my opinion the Act is poorly
drafted and often unhelpful
in trying to ascertain its intent
as well as its requirements.
20 The Right to Information: Reviewing
Queensland’s Freedom of Information Act, the
State of Queensland, 2008, 319 et al
Strengthening trust in Government - everyone’s right to know.
The combination of general
‘transparency’ issues with the
right of an individual to ensure
the accuracy and applicability
of their personal information
is not helpful and the two
matters are, at a conceptual
level, completely different.
The latter would be better
handled outside of an FoI Act
altogether.”21
Recent progression in legislation
across Australian jurisdictions is to
adopt a practice of “plain English”
legislation, which is more accessible
to the community seeking to use the
legislation without expensive resort to
employing lawyers. This direction in
legislative drafting will certainly assist
in overcoming some of the problem
identified with the current Act.
4.3 Changed Circumstances
The Tasmanian FOI Act is now some
18 years old and was drafted at a
time when governments published
proportionately very minor amounts
of information when compared to
2009. Indeed it was also conceived
and based upon ideas about
government information, mostly paper
21 Hoult, P, Re: FOI (Submission to this
Review) 2009, 1
based, which dated back to the 1960s
and earlier. The Act came about
relatively late in the evolution of FoI
in Australia and as such “fixed” some
of the earlier problems identified
elsewhere.
As a result of this late evolution the
Freedom of Information Act 1991
has been relatively robust and still
has many positives in its operation
compared to other jurisdictions.
Whilst conceptually it was forward
thinking in looking at information as
the basis of a broad collection, rather
than just documents, it also suffered in
its infancy, according to a submission
from a leading academic:
“Furthermore the original
design and intent of the
legislation was then heavily
modified before being accepted
by the major political parties.
It was then trimmed further
prior to its commencement
in late 1992 by the Liberal
Government.” 22
In 1991 the Computer age was
very much in its infancy, most state
servants were yet to have access to
computers, typing pools were still in
vogue, accessible operating systems
such as Windows 3.0 were less than
a year old, home computers were
owned by “geeks” or “nerds” and had
names like Commodore 64, and those
same “geeks” and “nerds” were most
likely the only ones to have heard of
the world wide web, the vast majority
of information held by government
22 Snell, R, A Brief Case for Reform –
(Submission to the Tasmanian Government)
May 2008, 3
Strengthening trust in Government - everyone’s right to know.
was in paper files and the explosion of
the electronic age in the 1980s meant
that managers had to remind staff of
the need to record telephone calls for
the files.
In 1991 annual reports were delayed
by the need to send them to the
Government Printer and your best
chance to read one was to go to
the State Reference Library. Apart
from the road rules, maps, tourism
guides and the like the only other
Government information made
regularly available was contained in
the red hard-covered Tasmanian Year
Book.
Against this background it is actually
a credit to the foresight of the then
Parliament to have passed into law an
Act that still has some relevance in
2009, however that same background
is also a strong indicator that 18
years is perhaps the life cycle of the
current Act and there is now a need
to develop legislation which will cope
with the circumstances, not just of
2009, but of the years ahead.
4.4 What’s in a name?
Contributors and discussions about
the review have not indicated a
need for a change. The Queensland
review process asked the question
of contributors about the need to
change the name of the legislation
and those that commented indicated
they could not see the need.23
Some indeed, argued that the terms
Freedom of Information and FoI
23 The Right to Information: Reviewing
Queensland’s Freedom of Information Act, the
State of Queensland, 2008, 322 et al
were so well established and so well
understood that a change of name
would serve to confuse.
However, there has been a move
away from the term Freedom
of Information in more recent
enactments across the world, with
New Zealand using the Official
Information Act, Canada the Access
to Information Act and India the Right
to Information Act. In Australia the
Northern Territory have put their
FoI Laws in their Information Act
(which is an omnibus Act including
Archives and Privacy provisions),
Queensland have published a draft
Right to Information Bill and the NSW
Ombudsman has recommended
that NSW Government pass new
legislation replacing their FoI Act 1989
and call their new legislation the Open
Government Information Act.
The Queensland logic for change was
expressed in its report:
“The Panel knows that
changing the title is not a
“remedy” of itself but the
Panel’s recommended redesign
of the Act’s architecture is
significant and directed to
remedying many layers of
problems with the current FOI
experience ……. The name
change is [an] important part
of the change package, and a
minor administrative effort to
communicate an important
message of difference.”24
24 ibid, 325
15
The New South Wales Ombudsman
similarly saw a need for change:
“A change in name can be a
powerful symbol, a line being
drawn in the sand and the start
of a new approach to providing
information to citizens in
NSW.”25
The review team favour a name
change for similar reasons to those
expressed in these reports. We are
recommending a significant overhaul
of how information is disclosed to
the Tasmanian community, and have
also adopted the concept that the
traditional FoI approach will be one
subset of disclosure of information
and one which will be used as a last
resort. Freedom of Information
and FoI are well established terms,
but as much as a negative term as a
description of the law. In the broader
context of the review being one of
a number of initiatives to build trust
in government then the review team
also conclude that a change of name
will provide a break from the past.
The review team favour the
Queensland nomenclature based
significantly on the Queensland
Panel’s citation of sources that there
is a trend internationally toward the
term Right to Information.26 Also
swaying the team to favour the Right
to Information terminology is that,
significantly, Part 2 of the present Act
dealing with the process of release
25 Opening up government: Review of
Freedom of Information Act 1989, NSW
Ombudsman, 2009, 35
26 The Right to Information: Reviewing
Queensland’s Freedom of Information Act, the
State of Queensland, 2008, 324 and 325
16
of information uses this term as a
heading.
Recommendation 1
A new “plain English” Act, to be
known as the Right to Information
Act 2009 (RtI Act), be prepared
for consideration by the Tasmanian
Parliament.
4.5 Accessing Personal
Information
At the time of the consideration of
the personal information protection in
Tasmania, the Department of Justice
examined the idea that the Personal
Information Protection Act 2004 (PIP
Act) should include the right to access
and amend personal data. However,
the Department concluded at the
time that the FoI Act appropriately
dealt with the matter and that the
implementation of the PIP Act would
be easier if this added complexity
were left out.27
Both the Queensland and New South
Wales Reviews have concluded that
moving the administration of access
and amendment of personal data
to separate specific legislation aids
the application of accessing general
government records. In NSW
the recommendation is to amend
the equivalent of our PIP Act, in
Queensland the recommendation is
to create an equivalent of our PIP Act.
27 As reported to Project Manager by
Secretary, Department of Justice during course
of this Review.
Strengthening trust in Government - everyone’s right to know.
As expressed in the submission
by Peter Hoult28, quoted earlier,
the concepts of gaining access
to the decision making process
of government and transparency
are fundamentally different to the
more practical concepts of ensuring
accuracy and applicability of personal
information. The bringing together
of the two concepts in a single piece
of legislation is, again, a product of its
time, which was some years before
the explosion of the collection and
promulgation of personal information
and therefore some years prior to
the debate and subsequent regulation
of how we deal with personal
information, as expressed in the PIP Act.
This issue was specifically put to the
working groups assisting the review
team. Most state service agencies
and particularly those holding most
personal information, namely Health
and Human Services, and Education,
have implemented detailed access
policies under the PIP Act regime
and this has resulted in a marked
reduction in the use of the FoI Act for
personal information. The consensus
favoured the moving of these
provisions to the PIP Act as a natural
progression of the administrative
processes required by that legislation.
Recommendation 2
That the Personal Information
Protection Act 2004 be amended
to provide for a right to access
and amend personal records as
currently provided for in the FoI
Act 1991.
28 Hoult, P, Re: FOI (Submission to this
Review) 2009, 1
4.6 Fitting it all together
In the course of this review two key
issues have been raised in relation to
the interaction of the FoI Act and the
Archives Act 1983.
The first of these is the variance in
terminology between the two pieces
of legislation, specifically the use of the
broader term of information in the FoI
Act and the distinct differences in the
definition of what constitutes a record
in each of the Acts. An exploration
of this leads the review team to
conclude that these differences arise
from the different objectives of each
piece of legislation.
The FoI Act has the broad object of
improving democratic government
by increasing accountability, whereas
the Archives Act is arguably about the
custody and long term availability of
records. The definitions used appear
appropriate for their purpose, but
problems arise as there is obvious
overlap in practice and it would aid
understanding if as part of a new
Act this overlap and confusion is
acknowledged in the drafting with a
view to providing clarity.
Mr Rick Snell, an expert advisor to
this project, sees a strong need for
a revamp of the Archives Act and
recommends this occur to not only
address the issue highlighted here
but to also make the Archives more
dynamic and more reflective of the
changing nature of information in the
21st Century.29
A similar situation arises between
terminology in the PIP Act and the
29 As reported to Project Manager as part of
this review, by Mr Snell.
Strengthening trust in Government - everyone’s right to know.
FOI act in relation to terms such as
“information related to the personal
affairs” versus “personal information”.
Again it is important to ensure there
is a high degree of synergy between
the legislation to aid in its applications
particularly, where the provisions
overlap. Universal use of the term
‘personal information” is the approach
argued for in the Queensland review
and the Australian Government
have resolved this by using “personal
information” as the term in both
their privacy and FoI regimes. The
review team concluded that this
should be resolved by adopting the
same approach as the Australian
Government.
Recommendation 3
That the Right to Information Act
2009 use terminology which
allows for clarity of interpretation
between the RtI Act and the
Archives Act 1983 and the Personal
Information Protection Act 2004.
4.7 Transfer of Information to the
Archives Office
The second issue raised in relation
to the Archives Act is summed up
by the Media Entertainment and Arts
Alliance in their submission:
“In developing this submission
a number of journalists
raised concerns with the
interpretation by departmental
employees of other legislation
that possibly impacted on rights
accruing under the Freedom
of Information Act 1991. In
particular the provisions of
Clause 15 and possibly other
parts of the Archives Act 1983
appear to give employee[s] a
capacity to restrict access to a
range of information without
such advice of any restricted
access being made generally
know[n] to the public.”
In an unpublished decision30, made
available to the Project Manager
by the Department of Premier and
Cabinet, the Tasmanian Ombudsman
addressed this issue and, in making
his determination in that particular
matter the Ombudsman concluded
that the construction of the Freedom
of Information Act 1991 was such that
Section 15 of the Archives Act did
not limit its operation.
The review team raised this in
discussions with the working groups
and have concluded that there
still remains some reliance on an
interpretation of the Archives Act
which would lead to decisions that
some information would not be
released. However the conclusion
which the review team drew
from contributors is that this is an
issue which should be put beyond
argument by creating greater clarity in
a new Act.
Recommendation 4
That the Right to Information Act
2009 provide that information
deposited with the Archives Office
of Tasmania, by public authorities,
is subject to access under the RtI
Act.
30 July 2006 Mr R Snell and Department of
Premier and Cabinet, Ombudsman Tasmania
(unpublished)
17
5 OBJECT OF THE RIGHT
TO I N F O R M AT I O N AC T
5.1 Current Object of the Freedom of Information Act 1991. gathered in the review process
indicates that the objects in Section
3 of the Act is a major positive in the
present legislation; however like all
   Section 3. Object of Act 
legislation it is how it is applied which
(1) The object of this Act is to improve democratic government in is criticised.
Tasmania – Contributors have spoken about the
(a) by increasing the accountability of the executive to the need to move to a so-called “push”
people of Tasmania; and model of FoI laws. A ‘push” model
has the need for an application to
(b) by increasing the ability of the people of Tasmania to
access information as a last resort.
participate in their governance.
In a “push” model public authorities
(2) This object is to be pursued by giving members of the public are required to adopt a broad
the right to obtain information contained in the records of information policy which supports
agencies and Ministers limited only by necessary exceptions and the provision of information to the
exemptions. public on a routine basis without
the need for an application. Such a
(3) The object is also to be pursued by giving each person a right
model is consistent with the current
to have amended any inaccurate, incomplete, out of date or
objects in the FoI Act and the model
misleading information relating to that person contained in the
is, arguably, enabled by Section 12 of
records of an agency or of a Minister.
the current Act. However, again it is
(4) It is the intention of Parliament – the implementation which appears to
(a) that this Act be interpreted so as to further the object set be wanting.
out in subsection (1); and A good example of the “push” model
in use within the current framework
(b) that discretions conferred by this Act be exercised so as to
is the Department of Health and
facilitate and promote, promptly and at the lowest reasonable
Human Services Health Progress
cost, the provision of the maximum amount of official
Chart, which is published quarterly
information.
and provides a complete statistical
picture of the performance of that
Agency on a regular basis.
5.2 Do we need a different – increased accountability of
objects? government and increased The push model has certainly been
participation in government – is fully facilitated by the proliferation of the
It is important that the philosophy internet and its use by Government
understood, accepted and adhered
behind the current FoI Act as a means of communicating. All
to by public authorities. Feedback

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18
government agencies and local
government entities have extensive
websites and use them to publish
information such as statistics, updates,
news, discussion papers, performance
reports and the like. One wonders,
had the amount of information
currently made available via websites
been available in the 1970s, would
the impetus for FoI laws been as great
and, indeed, would we now have the
laws that we have?
Section 7 of the current FoI Act
creates a right to information unless
the information is exempt information.
Section 15 of the current FoI Act
provides that so long as fees, if
payable, are paid then the information
shall be disclosed. The only legal
excuse for not complying with the
obligation that these sections create is
that the document is exempt and it is
the agency which must prove that the
document is exempt. In the context
of a similar provision in the FOI Act
(NSW) the NSW Court of Appeal
stated that:
“To withhold disclosure it is
for the agency to make out the
application for an exemption.
Thus the question properly is
not why the information should
be disclosed but why it should
be exempted.”31
Hence the construction of the objects,
particularly when read in conjunction
with sections 7, 15 and 12, creates
legislation which is both a so called
‘push’ model and, indeed, very much
pro-disclosure. The question then
becomes: Why is the Tasmanian Act
not viewed in this way?
31 Commissioner for Police v District Court of
NSW and Perrin (1993) 31 NSWLR 606, 625
Kirby P.
Strengthening trust in Government - everyone’s right to know.
Contributors, whilst seeing a positive
in the objects, can see a need for all
parts of the objects to have greater
clarity so as to impact on the culture
of public authorities that are using the
legislation. The objects, as currently
written, provides guidance as to
the purpose behind the legislation;
however contributors state that they
have been interpreted narrowly and
most public authorities read them as
providing a right of access within the
framework of the legislation which is
an end in itself. The objects do not
specifically provide guidance that the
Act should be interpreted as giving a
general right of access to information,
in line with a broad public interest
criteria.
Discussion arising from the working
group process supporting the creation
of this paper suggests that the
objects should spell out the provision
of information is a normal part of
government business and the use of
the Freedom of Information Act as a
means of achieving access should be
view as a last resort, only used when
the information is not available as part
of the business of Government.
It is recognised that large volumes of
information are released by public
authorities on a daily basis; the
information is released in the general
course of business. It is not unusual
for a journalist, a parliamentarian
or most likely a member of the
public to ring a public authority and
ask for information and for that
to be routinely and, in most cases,
immediately provided. It is this activity
which is not acknowledged in the
legislation
The Tasmanian community is able to
and should continue to be able to
ask for information to be provided
without the need for an expensive
and time consuming FoI process
being applied. FoI systems should be
viewed as adding to, not instead of,
other means of communicating with
the Tasmanian community. This is not
clear or acknowledged in the current
objects.
It is this broader right to information
which Rick Snell from the University
of Tasmania has been talking about
in recent times as Version 2.0 of FoI
legislation:
“A new generation of FoI
legislation and practice is
needed. A FoI Version 2.0
model would represent a shift
to a more dynamic, structured
and intellectually coherent
system of increasing the flow
and quality of information. This
is FoI for the Google age. The
legislative design and cultural
practices of the system need
to ensure adequate incentives
for pro-active and improved
disclosure. Simultaneously a
small but necessary zone of
secrecy and confidentiality has
to be protected.”32
State and local government and their
servants within the bureaucracies are
not in their jobs to collect and create
information for their own benefit.
Indeed the section 7 (d) of the State
Service Act 2000 (Tas) states:
“the State Service is
accountable for its actions
32 Snell, R., Opening Up the mindset is the
key to change, Public Sector Informant (The
Canberra Times) 8 November 2008, 10-11
19
 and performance, within
the framework of Ministerial
responsibility, to the
Government, the Parliament
and the community”.
In line with this principle it is easy to
argue that information handled in the
course of a state servant’s duties is
a resource of the State and should
be maintained carefully as would
any other resource obtained for the
benefit of the State.
The Environmental Defenders Office
in their submission also addressed
the need for stronger emphasis in the
objects of the Act:
“In his comparative analysis
of FOI legislation in Australia
and NZ, Rick Snell noted that
the explicit guiding principle
of availability, informed by
the purpose of accountability
and participation, in the NZ
legislation has been a key
difference in the way the
legislation is implemented in
the two countries. We would
therefore support a clearer
statement in the objects clause,
or in a preamble to the Act,
that the overriding principle
of the legislation is access to
information. The presumption
should be clearly stated that
information will be released; the
onus must be on the relevant
agency to demonstrate how
an exemption applies to the
request.”33
Recommendation 5
The Objects of the Right to
Information Act in Tasmania
33 Environmental Defenders Office,
Submission to the Review of the Freedom of
Information Act 1991, 2009, 2-3
20
be based on the FoI Act 1991
but amended to include a clear
statement that:
• information collected by public
authorities is collected for and on
behalf of the Tasmanian people
and is a State Resource.
• public authorities have an
obligation to provide information
to the people of Tasmania about
the operations of Government
and the formal processes in the
Act for assessed disclosure are a
last resort.
The objects of the current FoI
Act contains the words “limited
only by necessary exceptions and
exemptions”. Contributors to the
review believe that agencies have an
over reliance on applying exceptions
and exemptions in processing
requests and this is also the view
of the Tasmanian Ombudsman
expressed in many of his published
and unpublished decisions. This
reference to limitations in the objects
would appear to leave the way open
for public authorities to regard the FoI
Act as being as much about applying
the limitations, that is withholding
information, as it is about release of
information to create accountability
and participation in democracy.
The Australian Law Reform
Commission addressed a
similar provision to this in the
Commonwealth Act in its 1995
report and concluded that deletion of
the reference to the limitations in the
object of that Act:
“will ensure that the object
Strengthening trust in Government - everyone’s right to know.
clause emphasises the right of
access, not the exemptions,
without diminishing the
protections afforded the various
interests identified in the Act
as warranting protection.
That protection is afforded
by the exemption provisions
themselves, not by their
mention in the object clause.”34
Hence the view expressed in the
report is that the culture of response
to the legislation could be affected
by changes to the objects, without
affecting the protections which remain
in place.
Subsection 3 of the object in the
FoI Act will become redundant if
recommendation 2 is implemented
and therefore should be deleted.
Recommendation 6
The Object of the Right to
Information Act in Tasmania be
based on the FoI Act 1991 but
amended to:
• Delete the reference to a
limitation on the general right of
access imposed by exceptions and
exemptions; and
• Delete the reference to a right
to amend personal information
(which will now be a function
of the Personal Information
Protection Act)
34 Australian Law Reform Commission(ALRC)/
Administrative Review Council (ARC), Open
Government: a review of federal Freedom of
Information Act 1982, ALRC Report No.77,
ARC Report No. 40, December 1995, sect 4.8
(hereinafter referred to as ALRC/ARC Report )
6 W H AT I S I N F O R M AT I O N ?
(b) anything in which
information is embodied so
information as to be capable of being
noun 1. knowledge communicated or received concerning reproduced;
some fact or circumstance; news: *Numerous Australian “record of a Minister” means
writers have also raised similar objections to the way television a record in the possession of
news increasingly blurs the boundaries between information and a Minister, that relates to the
entertainment. --catharine lumby, 1999. affairs of an agency, and, for the
2. knowledge on various subjects, however acquired. purposes of this interpretation,
3. the act of informing. a Minister is to be taken to be
4. the state of being informed. in possession of a record if the
5.  Law a document used to initiate criminal proceedings in Minister is entitled to access
a magistrate’s court, which states the details of the alleged to the record and it is not a
criminal conduct; complaint. record in the possession of an
6. (in communication theory) a quantitative measure of the agency;36
contents of a message. [Latin informātio; replacing Middle
This definition includes all information
English enformacion, from Old French]
held; regardless of the form it is
--informational, adjective35
stored; such as files, databases, email,
35 The Macquarie Dictionary Online © 2009 Macquarie Dictionary Publishers Pty electronic documents etc. The
Ltd.
definition includes all records which
can be reproduced in a documentary
form and the feedback of the review
6.1 Documents or information? dictionary definition; it is the definition is that public authorities go to some
of the terms “record” and “record of length to bring forward information
The right to obtain information in
a minister” which arguably defines the from the breadth of their storages,
the current FoI Act is broader than
range of the legislation: including manual collation of statistics
some other Australian Jurisdictions.
“record” means – not readily available from electronic
Contributors consistently commented
sources. This approach to release of
that one of the strengths of the
(a) anything on which words, information is now well established in
current legislation is that it is not
figures, letters or symbols are Tasmania and this review concludes
focussed on paper documents and
marked and includes a map, that the legislation should be
allows access to information. The
plan, graph, drawing, painting or
term information is not defined
photograph; and 36 Freedom of Information Act 1991(Tas),
and therefore should be given the Section 5

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21
structured to continue this approach.
However this needs to be balanced
against the resources available to do
this.
The Tasmanian Ombudsman in his
submission to the review raises one
difficulty which arises from a lack
of a specific definition of what is a
‘record of an agency’, which arguably
results in constructive possession
being excluded if you are assessing
a record of an agency, but included
if you can show it to be in the
constructive possession of a Minister.
This is worthy of tidy up for the
sake of consistency and the Review
team concluded that there should
be a definition of ‘record of a public
authority’ in similar terms as ‘record of
a Minister’.
The FoI Act 1991 deals with the
release of information which is a
record of a Minister or an agency.
This was not a contentious issue.
However, there are situations where
a public authority is the holder of
information which should not be
considered the record of a Minister
or a public authority. One example of
this comes from the Department of
Education:
“At times, the Department
receives information from
third parties for the purpose
of assisting with reporting, for
example, from the Catholic
and independent education
sectors. The Department may
not actually use the information
in any way for its own benefit
and is only the holder of the
information while carrying
22
out a task for the owner of
the information. However,
by virtue of the fact that the
Department holds a copy of
the information in its custody
that information is arguably
subject to the Act.37
This function could be said to be
information ‘held on agency’ if it is
not information which the Minister or
public authority may require or use
in decision making and, therefore, this
information should not be considered
a record of the Minister. Similarly,
some information in, at least, the
broader Health and Education Sectors
is required to be submitted to the
Australian Government and for the
purpose of ease and efficiency it is
collated by the State Government
Department prior to transmission to
the Australian Government. Again
the information which is passed
via the State to the Australian
Government is ‘held on agency’ and
should not be considered a record of
the State.
37 Department of Education
Strengthening trust in Government - everyone’s right to know.
The review team concluded that the
management and recording of this
‘held on agency’ information need to
be the subject of guidelines developed
by the Ombudsman and subject to
monitoring by the Ombudsman.
Recommendation 7
The Right to Information Act 2009
define the terms ‘record’, ‘record
of a Minister’, and ‘record of a
public authority’ in a similar way
as the two former terms that
are defined in the FOI Act 1991,
but the definition should exclude
information ‘held on agency’ for
third parties.
6.2 Retrieval
A recommendation of the NSW
report is that the definition in that
state be broadened to “reflect the
range of formats used to record
information other than just paper”38.
Arguably the Tasmanian definition
38 Opening up government: Review of
Freedom of Information Act 1989, NSW
Ombudsman, 2009, 42
already does this. However, the
NSW report sensibly also explores
the issue of resources to retrieve data:
“While a definition based on
paper files and documents is
too narrow, many agencies
pointed out in their submissions
that just because information
is held electronically does
not necessarily mean it
is possible to produce
unlimited combinations of
that information. Expecting
an agency to write new
computer programs to satisfy
an individual’s request may not
be reasonable.”39
Similarly Tasmanian public authorities
expressed the view that at times
they have had to divert considerable
programmer time to satisfying a
request for information, which was
not readily available as part of the
‘business’ of the public authority. This
issue is largely about trying to find
answers to requests from databases
which have not been designed to
provide that particular answer.
The review team concluded
that there needs to be a limit on
unfettered requests for information
which divert resources and interfere in
the usual activities of public authority.
The NSW review recommends that
an approach adopted by a Canadian
Province may present the answer:
“We recommend the definition
of what can be accessed under
the new legislation should be
similar to the provision in the
39 Ibid
Strengthening trust in Government - everyone’s right to know.
Newfoundland and Labrador
Access to Information and
Protection of Privacy Act
where an agency must produce
records of information held in
electronic form where:
(a) it can be produced using
the normal computer hardware
and software and technical
expertise of the public body;
and
(b) producing it would not
interfere unreasonably with
the operations of the public
body.”40
Recommendation 8
The Right to Information Act 2009
provide for the release of records
stored in an electronic form
where:
• they can be produced using the
normal computer hardware and
software and technical expertise of
the public body; and
• producing them would not
interfere unreasonably with the
operations of the public body.
6.3 Metadata
Metadata, or the information held
about the information, represents
a very large proportion of the
information held by public authorities.
It ranges from a cover sheet placed on
ministerial correspondence to indicate
who should prepare a response, to
supporting structures of websites, to
40 Ibid, 43
electronic tagging of the computer
used to create a document. Similarly
it may be a piece of paper or it may
be a complex code embedded in the
software used by a public authority.
Given this breadth of what could be
defined as metadata, the working
groups informing the review team
indicated that they had concerns that
metadata was within the definition of
information and whilst it had not been
requested in a large scale, it may be
requested and require the diversion of
scarce resources.
Fundamentally, the working groups
expressed the opinion that they
could see public interest reasons
for the release of information about
information and would release the
information. However, given the
broad nature of what constitutes
metadata they could see many
situations where such a requests could
not be met for reason of an inability
to retrieve it from the electronic
source, or because retrieval may result
in unreasonable interference with the
operations of a public authority.
The review team could not discover
any widespread requests for the
production of metadata, although it
was noted that the Queensland Right
to Information Bill includes a clause
specifically dealing with this issue
in a similar way as is suggested by
Recommendation 8 of this report for
the dealing with requests for other
forms of electronic data.
23
Recommendation 9
The Right to Information Act
2009 provide for the release
of metadata, when specifically
requested. However, if it is stored
in an electronic form release
should only occur where:

• they can be produced using the

normal computer hardware and
software and technical expertise of
the public body; and

• producing they would not

interfere unreasonably with the
operations of the public body.

6.4 Back Up Systems

In the normal course of records
management some records are
disposed of or culled after certain
periods of time, this is done in
accordance with a disposal schedule
which must be approved by the
Archives Office of Tasmania. Through
the working group process it became
apparent that there may be electronic
versions of these records which
are kept as part of the back up or
catastrophe recovery processes of
those authorities.
The issue was also raised with the
NSW Ombudsman as part of his
review:
“The status of material on
backup systems was not
covered in the discussion paper
but was raised in submissions.
We agree. Where an
Megan Carter said:
agency has culled records in
accordance with an appropriate
‘Copies of material,
often deleted from the
agency’s main records
systems, often survives
on the back up tapes
of servers, for disaster
recovery purposes. It has
been raised in several
jurisdictions as a question
whether such records
are ‘documents’ for the
purposes of the FOI Act.
I would argue they are
not; however, a legislative
amendment would make
the issue clear.’
document disposal schedule it
should be under no obligation
to go to its backup systems
to search for and, if found,
recover the culled documents
in response to an application.”
The draft Clause 27 of the
Queensland Right to Information Bill
provides a similar exclusion of this
back up data.
Recommendation 10
The Right to Information Act 2009
provide that public authorities are
not required to search or recover
data from back up systems after it
has been culled in accordance with
an approved disposal schedule.

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24
7 S C O P E O F T H E R T I AC T
7.1 What is government?
In the 2004 Review of the
Ombudsman Act it was decided
to tidy up the definition of what is
government for the purposes of that
jurisdiction by the use of an inclusive
definition of the term public authority.
The rationale for the change was put
forward in a position paper published
at that time:
“Another way of achieving
this is to provide for a general
‘inclusive’ definition of a public
authority in the interpretation
section of the Act. The result
would be that all authorities
that fit into the definition would
come into jurisdiction unless
expressly stated otherwise.
A concomitant amendment
would provide that a
specific public authority
may be excluded from the
Ombudsman’s jurisdiction, as
is the case at the moment in
relation to the Tasmanian Audit
Office. A provision similar to
the existing Schedule 2 would
also be retained. Schedule 2
excludes some administrative
actions from the Ombudsman’s
jurisdiction, such as certain
action taken by the Tasmanian
Strengthening trust in Government - everyone’s right to know.
Industrial Commission and State
Service Commissioner. Bodies
such as electricity entities which
are subject to the Electricity
Ombudsman Act 1998 would
also be excluded to avoid
“double dipping” complaints.
The advantage of this method
of establishing jurisdiction is
that by defining an authority
there is no need to identify
and list all authorities up front.
Upon its creation, subject to
the definition, a new authority
would automatically come
within jurisdiction. Authorities
would not ‘fall out’ of
jurisdiction simply because of a
legislative or name change and
authorities that ceased to exist
would automatically be deleted
from jurisdiction without the
need to remove them formally.
This approach is consistent with
other more recent Tasmanian
Acts, such as the Freedom of
Information Act, Public Interest
Disclosures Act and the
proposed Personal Information
Protection Bill 2004 (in all of
which the Ombudsman has a
role) as well as Ombudsman
legislation in other jurisdictions.
The definition of a public
authority should be similar
across all those Acts
that generally govern the
administration of such bodies.”41
The working groups convened
to consider this review discussed
the definition of government and
what bodies should be part of the
legislation and concluded that it
was appropriate to have a synergy
between the method of defining the
jurisdiction of the Ombudsman and
the application of the disclosure laws
in a right to information approach.
7.2 The status of Government
Business Enterprises
The scope of the current Act appears
to not be clear as to Government
Business Enterprises (GBE), as
identified in the Ombudsman’s
submission to the review:
“I was recently faced with the
issue of whether Transend
[Networks Pty] Ltd is an
Agency under the Act, an issue
which depends on whether it is
a ‘prescribed authority’ within
the terms of paragraph (a) of
41 Review of the Ombudsman Act 1978:
Position Paper, Tasmanian Ombudsman, May
2004, 6-7
25
 the definition of that expression
in s 3. The company argued
that it was not, I thought it was,
and the Solicitor-General said
that the matter was arguable
either way. …… I have dealt
with a number of applications
for review against Aurora
[Energy Pty Ltd] over the last
year or so, and the same issue
arises there.”
The review team notes that the
Ombudsman Act 1978 includes
Government Business Enterprises,
although it provides a specific
exclusion for matters arising from the
operations of an energy company
which are capable of being dealt
with in the jurisdiction of the Energy
Ombudsman (s. 4A (2)). The review
team cancluded that the justification
of this exclusion as not valid in respect
of the RtI Act. The use of a form of
the provisions in the Ombudsman
Act to define the scope of the RtI
Act would achieve clarity in respect
of GBEs.
There was general acceptance
amongst contributors that GBEs, and
therefore ultimately the taxpayers,
should not be subject to competitive
disadvantage by their inclusion in
the RtI Act, as recommended by
the Independent Review Panel in
Queensland:
“… they should be entitled
to have their “competitive
commercial activities” protected
from disclosure, but not those
activities where they face no
competition from the private
26
sector. Nor should their “… s12 (5) [of the
activities in relation to their Ombudsman Act 1978]
community service obligations provides that the Ombudsman
be excluded/exempt from is not entitled to question
disclosure.” 42 the merits of any decision
made by a court or a person
This issue is currently dealt with by
as a member of a court. This
use of the general exemption afforded
prohibition does not apply
by section 32 of the current FoI Act.
to tribunals and at present,
An alternative is to provide a more
some tribunals are included
specific exclusion in the definition of
in Schedule 1 to the Act and
public authority which excludes the
therefore come under the
competitive commercial interests of
Ombudsman’s jurisdiction (the
a GBE.
Alcohol and Drug Dependency
Tribunal, Mental Health Tribunal,
Recommendation 11
Parole Board and Guardianship
The Right to Information Act 2009 and Administration Board).
apply to public authorities and As a matter of practice, the
Ombudsman does not question
the approach to defining the
the merits of a decision of one
term ‘public authority’ should
of these tribunals, but would
be consistent and similar to
investigate administrative
the inclusive definition in the
actions surrounding the
Ombudsman Act 1978.
decision, or the administrative
actions of the tribunal’s registry
7.3 Tribunals
or support staff.
Recommendation 11, above, does
If the method of determining
not clarify the specific position of
jurisdiction is changed as
the group of quasi-judicial bodies
suggested in this Paper, then
which fall under the general heading
a number of other tribunals
of Tribunals. However in the 2004
would automatically come
Review of the Ombudsman’s Act this
under the Ombudsman’s
issue was also addressed and it was
jurisdiction. These tribunals
decided to tidy up the relationship
range from the Resource
between the investigatory powers of
Management and Planning
the Ombudsman and the decision
Appeals Tribunal, which sits
making processes of Tribunals. The
as a full time tribunal, to small
rationale for the change was put
tribunals which only convene
forward in a position paper published
as necessary, such as the Forest
at that time:
Practices Tribunal.
42 The Right to Information: Reviewing Most of the tribunals have
Queensland’s Freedom of Information Act, the powers similar to a court –
State of Queensland, 2008, 88
Strengthening trust in Government - everyone’s right to know.
 for example, they may take
evidence on oath and issue
summons for the appearance
of witnesses or the production
of documents. Most tribunals,
must be chaired by, or at least
include, a legal practitioner
of some years standing.
However, tribunals are part
of the administrative arm
of government and it could
be argued they should be
subject to oversight by the
Ombudsman.
Schedule 2 of the Act excludes
administrative action taken by
the Industrial Commission in
relation to State employees.
With the growth of tribunals
and other quasi-legal bodies,
consideration should be given
to amending section 12(5)
or Schedule 2 so as to also
provide that the Ombudsman
cannot investigate an
administrative action taken by
a tribunal, or a member of a
tribunal, in the performance
of the tribunal’s deliberative
functions. The Ombudsman
would continue to have
jurisdiction to investigate
obviously administrative
functions performed by registry
staff. “Tribunal” would need to
be defined.”43
The Anti-Discrimination
Commissioner and her or his office
are involved in the investigatory
process of complaints under the
Anti-Discrimination Act 1998 and
43 Ibid, 8-9
Strengthening trust in Government - everyone’s right to know.
in a recent review of that Act it was
recommended that the deliberative
function of the Commissioner and her
office be removed from the FoI Act.
The Commissioners role is one of
several which may fall into a category
of undertaking a broadly similar role in
nature to some functions of Tribunals;
other examples include the State
Service Commissioner’s investigatory
role and code of conduct panels in
Local Government.
The review team concluded that for
the sake of clarity these functions
should also be included in the
proposed exception afforded to
Tribunals.
Recommendation 12
The Right to Information Act 2009
exclude certain information related
to the deliberative functions of
Tribunals and other like bodies
from the provisions of the RtI Act.
7.4 Non Government Sector
Both the recent Queensland and New
South Wales Review recommend
that the non government sector,
in so far as they are undertaking a
role of government or funded by
government, be included in the
provisions of FoI legislation. The
views expressed in these reviews are
best summed up as thus:
44 Review of the Complaint handling and
Dispute Resolution Provisions of the Anti-
Discrimination Act 1998, Department of Justice,
2008, 20
“There are two issues
here. One is whether non-
government and private
44
organisations performing
services on behalf of
government should be
subject to the same openness
obligations in relation to
information about those
services as a government
agency would be. Our
concluded view is that they
should. Government should
not be able to avoid the
usual accountability processes
by contracting out services.
Contracting out is becoming
increasingly common and
considerable public money
now goes to non-government
agencies to do what public
sector agencies have
traditionally done.
The second issue is then
whether all those who
provide contracted out
services have the capacity
to deal with applications to
access information. We would
argue that many do, but
acknowledge some smaller
NGOs in particular would have
neither the capacity nor the
infrastructure to handle such
requests.” 45
After the call for submissions
was issued in November 2008
the Tasmanian Council of Social
Services (TasCOSS) hosted a forum
45 Opening up government: Review of
Freedom of Information Act 1989, NSW
Ombudsman, 2009, 44
27
of its members to explore the
recommendation in the Queensland
• To create private sector
Report. Their submission is a
summary of the discussions and
conclusions of that forum and
addresses only this issue.
The view of the non government
sector represented by TasCOSS is
that:
• To rely upon an “alternative
“TasCOSS agrees that
accountability and the public
right of access to information
is of great importance.
However, we suggest that
the administrative burden and
associated costs of extending
the ambit of FOI legislation to
the non‐government sector
would outweigh the benefits.
In his paper “Who needs FOI
when market mechanisms
will deliver accountability on
demand? A critical evaluation
of the relationship between
FOI and Government Business
Enterprises,”46 Rick Snell
suggests that public policy
makers, academics and judges,
faced with the inapplicability
of the private/public law
dichotomy, have a number of
choices.
These are:
• To fill accountability gaps (in
the democratic sense) in the
private sphere with public law
mechanisms which is to advocate
the extension of FOI into the
46 Paper presented at INFO Two, 2nd
National Freedom of Information Conference,
7‐8 March 1996, Gold Coast International
Hotel http://www.law.utas.edu.au/foi/articles/
gbe_foi.html)
28
private sector.
accountability mechanisms which
result in the “accountability
replacement” approach and
the proliferation of industry
ombudsman schemes for
example.
accountability” regime in
which the robust application of
contractual and other private
law remedies in conjunction with
statutory safeguards (fair trading
legislation, citizen charters, clear
definition of “entitlements”
from utilities etc) will produce
an accountability framework far
better suited for the needs of a
competitive marketplace and the
efficient management of public
assets.
Rather than extending the
ambit of the Act, an “alternative
accountability” regime as
described above could be
considered. With regard to
the community services sector
this “accountability regime”
already exists to a large extent
through service agreements
with government agencies and
attendant reporting onuses.
In this climate of increased
accountability with contracting
government agencies requiring
more detailed and outcome
focused data including Quality
and Safety Frameworks as part
of their service agreements with
community sector organisations,
these reports and associated
documents could form the basis
Strengthening trust in Government - everyone’s right to know.
of such a regime.
In other words, the public
interest and demand for
accountability could be served
by ensuring that performance
and evaluation reports provided
by private organisations to
government agencies are
available under Tasmanian FOI
law. It is acknowledged that
there is uncertainty with regard
to the availability of these
reports under current FOI
law in Tasmania; however we
suggest that these issues could
easily be addressed as a result
of this review.
Under this model, FOI
requests would be made to
the responsible government
agencies rather than the private
organisations and thus private
organisations would not be
burdened by the resource
implications of responding to
FOI requests.
Further, if the “push model”
of automatic publishing were
preferred, these publications
(provided material that was
commercial‐in‐confidence
could be excised) could be
made automatically available on
agency websites.” 47
The ALRC/ARC considered the issue
of inclusion of the private sector in its
1995 report48:
47 Submission to the Review of the Freedom
of Information Act 1991 – Tasmanian Council of
Social Services, 2009, 2
48 ALRC/ARC Report, Open Government: a
review of federal Freedom of Information Act
1982, ALRC, 161

“The Review remains of the
view that the democratic
accountability and openness
required of the public sector
under the FOI Act should not
be required of the private
sector. As a general rule,
private sector bodies do
not exercise the executive
power of government49 and
do not have a duty to act
in the interest of the whole
community. Private sector
bodies should not be under
an obligation to disclose to
any member of the public any
document in their possession.
This does not mean that
private sector bodies are not
accountable to the public
at all. Private sector bodies
are already subject to a wide
range of federal, State and
local government regulations
that affect their management,
49 Some private sector bodies may do so
when contracted to provide services to the
public on behalf of the government: see para
15.12. of the ALRC/ARC Report.
Strengthening trust in Government - everyone’s right to know.
policies, operations and
products. These regulations
cover such matters as health
and safety, environmental
protection, company and
financial management, fair
trade practices and consumer
protection. They have been
imposed in response to
a demonstrated need for
accountability. In addition,
some industries have voluntarily
adopted disclosure policies to
enhance consumer access to
information.50 In the Review’s
view strong justification
would be needed to subject
private sector bodies to the
additional resource burden and
potential threats to commercial
operations that could result
from a general extension of
the FOI Act. The Review
50 e.g. the Australian Chemical Industry
Association Code of Practice on Right to
Know applies to companies that have agreed
to join the industry’s Responsible Care self-
regulatory scheme: Responsible Care: A Public
Commitment, Australian Chemical Industry
Council, 1989.
does not consider that such
justification exists. Accordingly,
it recommends that the FOI
Act not be extended to the
private sector.”
It could be argued that this 1995
report was prepared before the
more central functions of government
were subject to contracting out.
By contrast the level of reporting
expected in these contractual
arrangements has also been expanded
markedly. This accountability
mechanisms is seemingly constantly
being reviewed, one example
being the restructure of contractual
arrangements being undertaken by
the newly established Office of the
Community Sector in the Department
of Health and Human Services.
The review team concluded that the
approach put forward by TasCOSS
of allowing for access to information
via performance and evaluation
reports, or the like, meets a level of
accountability which is beyond that
of an ordinary private sector body,
but which meets the public interest
test of ensuring government funding
and functions have a higher level of
transparency and accountability.
Recommendation 13
That the Right to Information Act
2009 provide for the release by
a public authority of performance
and evaluation reports, or the
like, required to be provided to
a public authority by a funded
private organisation under the
terms of an Act or Agreement.
29
8 PUBLIC INTEREST
As noted by the ALRC/ARC in their
report in 199551:
“Before the FOI Act, the
disclosure of government-
held information outside legal
proceedings was entirely
at the discretion of the
government. This focus on
the public interest as the key
determinant of disclosure of
government information is
evidenced by the incorporation
of a public interest test in
most exemption provisions. In
others exemption provisions
the public interest component
is implicit.52 Public interest tests
allow all considerations relevant
to a particular request to be
balanced. They are therefore
an important and necessary
feature of the Act, even though
it can at times be difficult
to perform this balancing
exercise.”
51 ALRC/ARC Report, Open Government: a
review of federal Freedom of Information Act
1982, , December 1995, sect 8.12
52 e.g. s34, s42, s45, s46. of the Federal
Freedom of Information Act 1982, as it was in
1995.
30
8.1 Can you define the ‘public
interest’53
“The public interest is an
amorphous concept which is
not defined in the FOI Act
or any other statute. The
determination of public interest
is essentially non-justiciable and
depends on the application
of a subjective rather than an
ascertainable criterion.54 The
origins of the public interest
test also create uncertainty.55
The public interest has been
described as something that is
of serious concern or benefit
to the public not merely of
53 ALRC/ARC Report, Open Government: a
review of federal Freedom of Information Act
1982, , December 1995, sect 8.13
54 R v Trade Practices Tribunal; ex parte
Tasmanian Breweries Ltd (1971) 123 CLR 361.
55 Public interest immunity, also known as
Crown privilege or public interest privilege, is a
test used in common law to determine whether
official documents can be used by a court. It
has been argued that the interpretation of the
public interest in FOI legislation has become
inappropriately imbued with notions used in this
test. See, e.g., Re Eccleston and Dept of Family
Services and Aboriginal and Islander Affairs
(1993) 1 QAR 60; A Cossins Submission 27.
Strengthening trust in Government - everyone’s right to know.
individual interest.56 It has also
been held that public interest
does not mean ‘of interest to
the public’ but ‘in the interest
of the public’.57 This lack of
definition can mean the public
interest is difficult for agencies,
applicants and the AAT to
ascertain. Despite this, the
Review does not consider that
any attempt should be made to
define the public interest in the
FOI Act. The public interest
will change over time and
according to the circumstances
of each situation. It would be
impossible to define the public
interest yet allow the necessary
flexibility.”
FoI legislation across most
jurisdictions seemed to have
two major approaches to the
test of “the public interest”.
56 See, e.g., British Steel Corporation v
Granada Television Ltd (1980) 3 WLR 780;
Sinclair v Mining Warden at Maryborough
(1975) 132 CLR 473; Re Eccleston and Dept
of Family Services and Aboriginal and Islander
Affairs (1993) 1 QAR 60. See also Attorney-
General’s Dept’s training material on the public
interest in FOI.
57 Johansen v City Mutual Life Assurance
Society Ltd (1905) 2 CLR 186.
The first applies a public interest test
into specific exemption clauses. This is
the current approach in Tasmania.
The second approach involves the
application of an over-arching public
interest test to most information. This
approach appears in the draft Right to
Information Bill in Queensland, which
includes a list of factors for and against
disclosure in a schedule.
A specific public interest test appears
in eight of the seventeen sections
dealing with exemptions in Part 3 of
the Freedom of Information Act 1991.
The public interest test in these
sections takes on five distinct forms:
• Section 23 and 24 – the test is
one of “in the public interest”, but
applied by the Ombudsman upon
review;
• Section 26(1) and 35 – the test
is one of “disclosure would be
contrary to the public interest”;
• Section 27 - the test is one of
“disclosure would be contrary
to the public interest”, but with
clarification of how that applies;
• Sections 28 and 34 – the test is
one of disclosure if it is “in the
public interest”; and
• Section 33 – test is both “contrary
to the public interest because the
disclosure would be reasonably
likely to impair the ability of an
agency or a Minister to obtain
similar information in the future”
and an overarching disclosure if in
the public interest.
Strengthening trust in Government - everyone’s right to know.
An exploration of these tests with
the working groups showed that
this variation in wording added to
the confusion that officers had in
understanding their obligations in
applying a public interest test. Whilst
an exploration of the wording and
how they are applied on review
would show that at one level it
is appropriate to have a level of
dissonance about how they should be
applied, it is a distinct lack of guidance
on what is the public interest which
detracts from the applications of these
terms.
The Queensland review panel
recommended including a clear
legislative statement that information
is to be provided to the Public “unless
its disclosure, on balance, would be
contrary to the public interest.”58
In NSW the Ombudsman has also
recommended that new legislation
there contain a similar statement.
“This will help ensure that,
before looking to the reasons
for refusal, those determining
applications will have the public
interest at the front of their
minds”59.
The public interest test was discussed
in detail with the working groups and
the consensus was that the application
of the tests would benefit from
greater clarity for officers applying the
test and would also be aided by the
58 The Right to Information: Reviewing
Queensland’s Freedom of Information Act, the
State of Queensland, 2008, 149
59 Opening up government: Review of
Freedom of Information Act 1989, NSW
Ombudsman, 2009, 56
Tasmanian community being aware
of what is taken into account when
it is applied. There appears to be
an understanding at some level with
some applicants that sees “in the
public interest” being read as “what
the public are interested in” The two
terms are very different concepts and
publishing information about what
is taken into account would assist in
showing that difference.
“The adequacy of the Act in
ensuring a proper degree of
transparency in government
processes would improve if
there were to be a clear and
consistent definition of ‘public
interest’. The current Act
does not clearly define ‘public
interest’ and, indeed, provides
more than one definition. A
clear and consistent definition
would reduce confusion and
improve the effectiveness of
the Act in terms of achieving
transparency.60
The review team concluded that
clarity and transparency were
compelling reasons for favouring
the approach suggested by the
Queensland Review:
“The Panel considers that the
incorporation in the Act of a
non-exhaustive list of factors
(relevant to the determination
of whether in a particular case
access to matter would be
granted unless on balance, it
would be contrary to the public
60 Submission to the Review of the Freedom
of Information Act 1991, Department of
Education, 3
31
 interest) would not reduce the
flexibility inherent in the public
interest concept, nor would
it freeze that concept in time.
Rather, it would achieve what
the LCARC sought through
the publishing of guidelines,
namely, to “overcome some
of the difficulties currently
experienced while maintaining
the necessary flexibility”. It
believes it would improve
decision-making at first instance
in agencies and should result
in more uniformity in the
administration of freedom
of information across all
agencies.”61
Flexibility can also be enhanced by
providing for the list of factors to be
in a schedule of the RtI Act, which
would be able to be amended by an
order of the Governor.
8.2 Factors to be considered
when assessing the Public
Interest
In conjunction with the working
groups the list of factors which the
review team suggests should be
included as factors to be assessed
when applying a public interest test
are:
• the general public need for
government information being
accessible;
• whether disclosure would
contribute to debate on a matter
of public interest;
• whether the disclosure would
61 The Right to Information: Reviewing
Queensland’s Freedom of Information Act, the
State of Queensland, 2008, 155
32
inform a person about the
reasons for a decision;
• whether the disclosure provides
the contextual information to
aid in the understanding of
government decisions;
• whether disclosure would inform
the public about the rules and
practices of government in dealing
with the public ;
• whether disclosure would
enhance scrutiny of government
decision making processes and
thereby improve accountability
and participation;
• whether the disclosure would
enhance scrutiny of government
administrative processes;
• whether the disclosure would
promote or hinder equity and
fair treatment of persons or
corporation in their dealings with
government;
• whether the disclosure will
promote or harm the public
health and safety;
• whether the disclosure
will promote or harm the
administration of justice, including
affording procedural fairness and
enforcement of the law;
• whether the disclosure will
promote or harm the economic
development of the state;
• whether the disclosure
will promote or harm the
environment and or ecology of
the state.
In addition the Review team
concluded that it was important to
Strengthening trust in Government - everyone’s right to know.
specify some factors as irrelevant to
the public interest:
• the seniority of the person who
is involved in preparing the
document or who is the subject
of the document;
• that disclosure would confuse the
public or that there is a possibility
that the public might not readily
understand any tentative quality
of the information;
• that disclosure would cause a loss
of confidence in the government;
• that disclosure may cause the
applicant to misinterpret or
misunderstand the information
contained in the document
because of an omission from
the document or for any other
reason.
The application process (explored
in a later chapter) should allow an
applicant to nominate any public
interest factors in favour of disclosure
that he or she believes are relevant.
Recommendation 14
The Right to Information Act 2009
include a clear statement that
disclosure of information must
occur unless its disclosure, on
balance, would be contrary to the
public interest.
Recommendation 15
The Right to Information Act 2009
include a Schedule providing a
non-exhaustive list of the factors
which must be taken into account
in assessing the public interest.
9 PUSHING OUT
I N F O R M AT I O N
9.1 Types of Disclosure
The foregoing chapters indicated
that Tasmania intends to follow the
lead of other jurisdictions and adopt
a proactive disclosure, or so called
‘push’, model in applying the Right
to Information. This language needs
to be reflected in the construction
of the processes for disclosure.
Contributors and the Queensland
and NSW reviews all indicate that
the desired state is that more and
more government information needs
to be available to the community
without reliance on expensive and
time consuming traditional freedom of
information processes:
“In addition to the FoI Act,
there are a number of
mechanisms for ensuring
government transparency
including parliamentary scrutiny,
annual reports and the media.
The adequacy or otherwise of
the Act in ensuring a proper
degree of transparency in
government processes should
be considered in the context
of the broader accountability
framework rather than in
isolation.
The Department of Education
believes that it is accountable
Strengthening trust in Government - everyone’s right to know.
through the Government to “The Department believes
Tasmanian for its services and that it should inform the
performance. The Department Tasmanian Community about
produces an annual report. its activities and performance
The Minister, through and, accordingly, is working
Parliament, is held to account to actively release more
for the Department’s activities organisational information. For
and performance through example, In 2008 Tasmania’s
parliamentary processes such as first Education Performance
Question Time, Questions on Report on Government
Notice, Motions and Estimates. schools was released and is
available on the Department’s
The Department, as part
website. It reports data on
of its day-to-day activities,
15 measures of educational
also provides information or
performance for the State and
responds to requests made
each regional Learning Services.
directly to it outside of the FOI
School Improvement Reports
Act. This is done in a whole
were also released for every
range of ways, from telephone
government school in Tasmania.
calls, email, correspondence to
These reports will be released
the Minister and departmental
annually.
staff in school and non-school
areas, to regular meetings with In the Departments view the
stakeholders, and briefings Freedom of Information Act
for politicians who make a should supplement rather than
request to the Minister as well replace or duplicate those
as through the Department’s established practices.”62
website. The Department
This extract outlines four levels of
believes that these mechanisms
disclosure of information outside
and relationships are extremely
of the scrutiny of the parliamentary
important in working with the
processes, which is inherent to our
Tasmanian community as well
Westminster democracy.
as for transparency in decision
making.”
62 Submission to Tasmanian FoI Act Review,
Department of Education, 2009, 2
33
The first of these levels is the
information which public authorities
are required to release in legislation
or legislative processes. Annual
reports, the Freedom of Information
report, financial statements, personal
information protection policies,
health and safety policies and the
state budget are just a few examples.
Also falling into this category is the
information required to be published
either by the State or through the
Australian Government by virtue of
intergovernmental agreements, such
as the information provided for the
Report on Government Services.
Some of this information is also in
registers which are required by law
to be made publicly available for
inspection. A majority of these are
generally available to the Tasmanian
community, online, through the State
Library, through specialist libraries and
by contacting the public authorities.
The second level of information
is that category which is routinely
available from government, including
information on the websites, in fact
sheets, in brochures and in formal
publications such as the Road Rules
and the like. Increasingly government
is compiling information in response
to public need and making this
available as a regular report, for
instance the Health Progress Chart
or the Schools Improvement Report.
Government and public authorities
also release information routinely
through media releases, adverts and
indeed special interest media, such
as the Glenorchy City Council’s
“Glenorchy Gazette”, which includes
34
a report of decisions of council, 2. Routine disclosure; that is
upcoming works, upcoming meetings the voluntary publishing of
and the like. Most of the information Government Information of
at this level is provided free of charge, interest to the public;
some is available at a cost.
3. Active disclosure; that is the
The third level is that category of voluntary release of information
information where public authorities upon request; and
don’t necessarily predict a need
4. Assessed disclosure; that is the
to routinely make it available and
release of information after it has
therefore respond to requests
been assessed against defined
as required. This includes
limitations.
answering phone calls, emails and
correspondence, requests for
Recommendation 16
briefings, and question and answer
sessions as part of public awareness The Right to Information Act 2009
campaigns. It involves a vast number provide for and define four types
of staff across all public authorities of information disclosure, namely
and is a category almost impossible to required, routine, active and
quantify as responding to the public is assessed disclosures.
a core activity of most authorities.
Media, communication or information 9.2 Benefit or Burden
officers within public authorities have
Working groups, particularly those
a vital role in identifying the types
involving operative level staff
of information which should be in
raised the concern that a proactive
second and third level disclosures.
disclosure model would in fact mean
They are in daily contact with users
that they are spending considerable
of information and therefore have a
amount of time sorting through
very good chance of being able to
information and publishing it. At the
know what it is that the community is
management level there was a fear
wanting from Government.
that systems would grind to a halt
The final and, given the statistics if we were required to publish all
summarised earlier in this paper, information.
smallest level of information release is
An analysis of the publications list in
that which is released under a formal
annual reports and of the websites of
freedom of information process.
public authorities in Tasmania shows
that major portions of information
These four levels can be summarised
are already available, including large
as:
amounts of performance information.
1. Required disclosure; that is the
Authorities have made decisions
disclosures required by law or
about information that is in the public
enforceable under an agreement;
interest and made it available. A
Strengthening trust in Government - everyone’s right to know.
proactive disclosure model formalises
this process.
The NSW Ombudsman’s review
included an “audit” style approach to
gathering information about FoI in that
state and the issues identified were
similar to the type of discussions with
the review team in this process:
“Many of the agency
submissions we received
suggested that requiring
greater proactive disclosure
would be an unnecessary
diversion of resources. During
our interviews with staff, a
number complained that FOI
applications from journalists
and opposition Members of
Parliament caused them a
great amount of difficulty and
accounted for much of their
search time.
Case-study
A waste of time
During our audit of
agencies, one FOI unit told
of their frustrations with
a particular opposition
MP’s office. They had
developed a reputation
for putting in extremely
broad and poorly
worded applications for
information. The FOI
staff would then attempt
to assess the work
involved in answering
the request. When
they then requested an
advance deposit from the
parliamentarian’s office,
Strengthening trust in Government - everyone’s right to know.
they received no response. journalists have made unfair and
This meant they had imbalanced use of information
expended time and effort to either score political points
in defining the scope of or to create a sensational story.
the application, only to
These complaints, as well
receive no response from
as those of journalists about
the applicant.
the time taken to process
In its submission, the applications, are indicative of a
Department of Health wider problem. The media feel
commented that: that they are being fed spin,
and the agencies feel that their
The majority of the
work is unfairly and unevenly
applications received
represented in order to sell
by the Department are
newspapers and grab audiences.
from either Members of
This is not a problem that can
Parliament or the media
be solved by improving the FOI
seeking access to non-
system alone. Both sides need
personal information.
to recognise the important role
In recent years, these
they are meant to perform for
applications have
the community.
become broader and
more complex in the Agencies need to appreciate
information being sought, that releasing a greater amount
which has consequently of information outside FOI
placed more demands on will make it more difficult to
the FOI Unit to not only either craft a damaging story
determine applications out of partial information or
within the statutory misrepresent the information
timeframes, but also meet entirely. When such stories
the other requirements are run, the agency will be
under the FOI Act such as able to point to the relevant
identifying the documents information — which will be in
captured by the scope of the public domain — and show
the request, reviewing the that it has been misrepresented.
documents, consultation It will allow agencies to hold
with third parties and journalists to account for the
consideration of the standard of their reporting.
comments received. More importantly, releasing a
greater amount of information
Agency staff, both during
without the perception it
this review and as part of
has been ‘dragged’ out of
our ongoing work with the
government, may raise the
Act, have told us they feel
level of public debate in NSW
that opposition MPs and
35
 and lead to a higher level of
community consultation and
input.”63
The advantage to the community
of a proactive disclosure model is
that they will have greater levels of
information available to them, for
public authorities this system should,
over time, result in decreases in
requests for information, especially
those requiring expensive and time
consuming assessment.
9.3 Proactive Disclosure Model
In a proactive disclosure model the
emphasis is on the first three of the
levels outlined earlier. In a Right to
Information regime the legislation
should make it clear that it is the
responsibility of public authorities
to ensure that information is made
accessible by the community under
the first three of these categories and
that information available in these
categories are not subject to assessed
disclosure.
Systems need to be in place to
recognise when there are high
numbers of active disclosures of the
same information and to respond by
publishing this as a routine disclosure.
Similarly analysis of assessed disclosure
may result in routine publishing of the
information or inclusion of the data in
required disclosures. This is arguably
already sound practice within most
public authorities.
To assist with this process the
63 Opening up government: Review of
Freedom of Information Act 1989, NSW
Ombudsman, 2009, 24
36
legislation should allow for the
Ombudsman to provide guidelines
on information disclosure, which
encourage disclosure other than
through an assessed process.
Earlier in this document we also made
recommendation for changes to the
objects of the Act to place greater
emphasis on assessed disclosure as a
last resort. Section 9 of the current
FoI Act 1991 states:
A person is not entitled under
this Part to –
(a) information contained in a
record that may be inspected
by the public in accordance
with another Act; or
(b) information that may be
purchased in accordance with
arrangements made by an
agency.
To reinforce the concept of assessed
disclosure as a last resort a similar
provision to this should be created
in the RtI Act which would allow
Strengthening trust in Government - everyone’s right to know.
public authorities to refuse an
application for assessed disclosure if
the information is otherwise available
through any of the other methods
of disclosure defined here. This
would both encourage the public to
look for information before making
an application but also emphasise
to agencies that they can reduce
applications by increasing information
disclosed in a proactive process.
In relation to required or routine
disclosure of information which is due
for release in the future the refusal
should only occur where publication
has occurred or there is a defined
period of publication; for instance the
date an annual report is published is
subject to a defined process rather
than a set date.
Currently public authority annual
reports include a list of publications,
this reporting process would readily
lends itself to expansion to point
people to not just publications but
to websites and other sources of
information. At least one public
authority publishes documents
released under the current FoI Act
on their website. These are issues
which the review team noted should
be looked at as part of any guidelines
developed for disclosure.
At the issue identification forum
and through the working groups,
the issue of protection for release
of information other than through
the assessed process was raised as a
major concern for individual officers
working with the current Act. Section
53 of the current Act provides this
protection for assessed information,
but does not extend to other
releases. A similar issue was looked at
in the NSW Review:
“In the discussion paper we
asked if the bona fide release
of documents should attract
the same protections as release
under the FOI Act. Almost all
of the submissions that dealt
with the issue of proactive
release expressed strong
support for some form of
protection. This included those
that were not overly supportive
of greater release. We believe
such a protection is needed,
as it will act as an incentive to
releasing a greater amount of
information outside of the FOI
process.”64
The review team, the project sponsor
and the Tasmanian Ombudsman all
consider that a broad protection
such as that proposed by the NSW
Ombudsman would need to be
64 Ibid, 23
Strengthening trust in Government - everyone’s right to know.
carefully constructed so as to not
provide impunity from defamation
unless the disclosure was required
by law. The review team concluded
that this was an area to be explored
further through the drafting process.
Recommendation 17
The Right to Information Act 2009
provide that assessed disclosure is
a last resort and may be refused if
the information is, or in the case
of required or routine disclosure
will be, otherwise available as
a required, routine or active
disclosure.
Recommendation 18
The Right to Information Act 2009
provide that the Ombudsman is to
publish guidelines on the process
for dealing with all four types of
information disclosure.
Recommendation 19
The Right to Information Act
2009 provide for a limited level
of protection for disclosure of
information in all four defined
categories and for similar
protection of assessed disclosure
only as is provided in section 53 of
the FoI Act 1991.
37
10 ASSESSED
D I S C LO S U R E
10.1 Application
Section 13 of the current FoI Act
makes it a requirement that applicants
give sufficient information to identify
the information required. This
provision is apparently inconsistently
applied across public authorities.
Some will write back asking for
more information or with a series
of questions, some ring or email to
query the request, others accept
the application at face value and
attempt to give the applicant what
it appears they want. A sample of
the standard request form in current
use is Appendix 2, although it is not
necessary to use this form to make a
valid request.
In working through this at the Issues
Forum a number of participants
suggested the need for a better
“form”. This approach was taken up
with working groups and they agreed
that better information flow between
applicants and public authorities
would assist in refining applications.
One suggestion was that prescribing
a standard application form would
assist. The application form should
contain information about the process
to the applicant and also ask quite
targeted questions which would assist
in refining the scope of the request.
38
The consensus was that the
application for assessed disclosure
of information should contain the
following advice to applicants:
• Details of how to search for
information for public authorities
(this should be tailored to the
particular authority).
• A description of how to ask
for information outside of the
assessed disclosure process.
• Who to contact to discuss the
application and/or process.
• Outline of the reasons the
application can be refused.
• Outline of the assessment process
and timeline.
The application for assessed disclosure
of information should ask for the
following details from the applicant:
• Applicants details and contact
information;
• Preferred method of release
(e.g. electronic, hard copies,
inspections);
• Efforts made to secure the
information prior to making the
application;
• A description of what information
is required (in sufficient detail to
Strengthening trust in Government - everyone’s right to know.
allow for identification of that
information); and
• An outline of the public interest
factors which favour the release
of the information.
In addition the application should
include a series of optional, non-
prescribed, questions about the
description which will refine the
request e.g.
• Where is the information held?
• Why do you think the authority
has the information?
• What is the information used for?
• Have you had similar information
in the past?
• What are the consequences if the
application were to be delayed
beyond the standard timeframe?
On balance the review team
concluded that a prescribed form was
not consistent with the suggested
object of the RtI Act, however
prescribing minimum information
to be available to applicants
and minimum standards for the
information in the application was
both consistent and a practicable
outcome.
Application forms are currently
available on line and this should
continue. Public authorities currently
allow for ease of lodgement of
applications via email and the review
team concluded that this should
be extended to allow for online
lodgement. Application should also
be able to be made by traditional mail
and through Service Tasmania outlets.
Section 13 of the FoI Act 1991
provides for a public authorities to
take reasonable steps to assist a
person to make an application which
is compliant with the Act. This
improves accessibility for applicants to
the scheme of the Act and the review
team concluded it should continue in
the present legislation.
Recommendation 20
The Right to Information Act 2009
provide:
• for the minimum prescribed
information to be available to
an applicant about the public
authorities assessment procedures
for applications for assessed
disclosures of information;
• for the minimum prescribed
information to be provided in an
application for assessed disclosure
of information; and
• for a public authority to take
reasonable steps to assist an
applicant in making a compliant
application.
Strengthening trust in Government - everyone’s right to know.
10.2 Fees The Department takes its
obligation under the current
• “…providing access to
FOI Act seriously but believes
government information can be
that account needs to be taken
argued to be:
of the cost of FOI, particularly
• a cost of democracy that should in the context of the other
be borne by governments in the accountability mechanisms.”
same way as the courts, police
Fees are levied in accordance with
and the electoral system, or
section 17 of the FoI Act 1991
• a service provided by government and a maximum charge of $400 is
for which users should pay in the prescribed by that section. The fee
same way users pay for essential cannot be charged for assessing the
services such as water, electricity application against the exemptions
and gas. and is to be waived if the information
is routine or if the applicant is a
Most jurisdictions around
Member of Parliament acting in
the world have adopted an
connection with her or his official
approach that fees and charges
duties.
are not intended to cover all
costs involved.”65 If a fee is to be levied of greater
than $25 then the applicant is to be
All public authorities that contributed
advised and given opportunity to
to this review indicated that there is
work with the public authority to
a very significant gap between the
reduce the cost. The decision to levy
actual cost and cost recovery involved
a fee and the amount of the fee are
in FoI applications. All accepted that
reviewable decisions.
this should continue to be the case,
but some offset should occur. A Fees levied, reductions and waivers
case study from the Department under the current FoI scheme in
of Education demonstrates the Tasmania are further defined in
differential between cost recovery and the Freedom of Information (Fees)
the true cost of FoI: Regulations 2004 and are defined
in fee units (A fee unit is currently
“As an example of the
$1.28):
workload, it is estimated that
10 applications for complex
organisational information
made by a politician in 2007-08
required in excess of 382 hours,
costing a very conservative
estimate more than $17,000.
65 Opening up government: Review of
Freedom of Information Act 1989, NSW
Ombudsman, 2009, 80
39
 Table 5:
S u mma ry o f c h a rg e s f o r F o I i n Ta s m a n i a
Category
Finding a record
Supervising Inspection
Photocopying
Transcripts
Personal information
Information is to be used for the General
Public Interest
Impecunious Applicant
The Environmental Defenders Office
was one of very few contributors who
commented on the issue of fees:
“An open and accountable FOI
system should not be based
on fee recovery, or use fees as
a deterrent. We acknowledge
that some costs are involved in
processing requests however it
is important that FOI charges
not be incompatible with
the objects of disclosure and
transparency.
We strongly support the
following aspects of the FOI
regime:
• No application fees;
• Maximum fee cap;
• Waiver of fees where request is
made in the public interest.
We also support the practice
of some government agencies
to provide the first two FoI
requests for each applicant
without charge.
Strengthening trust in Government - everyone’s right to know.
40
Fee
25 fee units per hour
25 fee units per hour
0.2 fee units per page
15 fee units per page
Calculated as above, but reduced by $50 if
total is less than $150 and a maximum fee
of $100 if total is above $150.
Calculated as above, but reduced by $50
Fee Waived
Where a large number of
documents are made available
to the applicant, a list should be
provided to allow the applicant
to nominate which documents
they require copies of. This will
limit costs to both the agency
and the applicant.”66
Charging of fees for FoI is not
universal across public authorities,
some take the view that the vast
majority of requests are for routine
information and therefore rarely
charge, others apply the provision
more technically, yet others cap the
number of hours for which they
charge resulting in a fee much below
the maximum prescribed.
Tasmania is one of only two
jurisdictions that do not levy an
application fee on any applications and
one of 6 which do not levy a fee on
internal review:
66 Submission to the Review of the Freedom
of Information Act 1991 – Environmental
Defenders Office, 6
Table 6: On the other hand the review team
concluded that the introduction of
Sum m ar y of Fo I A p plic atio n Fees in Au s t ra l i a an application fee would encourage
Jurisdiction On application On Internal Review users to undertake searches of
Tasmania No No already available information prior to
Australian Capital Territory No No making an application for an assessed
Australian Government $30 $40 disclosure of information.

New South Wales $30 $40 The application fee should be waived
Northern Territory $30 (non-personal) No where the applicant is impecunious
Queensland $36.50 (non-personal) No and where the applicant is a Member

South Australia $23.80 $23.80

of Parliament acting in connection
with her or his official duties. The
Victoria $22 No
application should not be accepted
Western Australia $30 No
and therefore the time period for
67
processing should not commence
The Queensland Expert Panel recommends that costing in that State be simplified until the application fee is paid or the
and that there be no charges for searching, retrieval or decision making in relation decision to waive the fee is made.
to an application. Instead a charge would be levied based on the amount of
information released68: Recommendation 21

Table 7: The Right to Information Act 2009

provide for a fee structure for the
N um ber of Fee release of information, following an
f o l i os application for assessed disclosure,
1-10 Free similar to the Freedom of
11-20 $2 per page for each page in this bracket Information Act 1991, except that
no fees should be levied for the
21-50 $20 plus $2.25 per page for each page in this bracket
release of information where the
51-100 $87.50 plus $2.50 per page for each page in this bracket
time spent in finding the record is
101-500 $212.50 plus $2.75 per page for each page in this bracket less than 2 hours.
501-1000 $1,312.50 plus $3.00 per page for each page in this bracket

1000 and more $2,812.50 plus $5.00 per page for each page in this bracket

On balance the review team does not favour the significant increase in fees
that may result from adopting this model. On the other hand the review team
do favour the introduction of a fee free area for the release of information not
involving significant time in finding the record and the application of fees as per
the current Tasmanian schedule for disclosures involving information above a fee
free limit.

67 Source - Opening up government: Review of Freedom of Information Act 1989, NSW

Ombudsman, 2009, 79
68 The Right to Information: Reviewing Queensland’s Freedom of Information Act, the State of
Queensland, 2008, Appendix 7

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41
Recommendation 22
The Right to Information Act 2009
provide for an application fee
of 25 fee units (currently $32),
which may be waived where
the applicant is impecunious or
where the applicant is a Member
of Parliament acting in connection
with her or his official duty.
Recommendation 23
The Right to Information Act 2009
provide that the application fee
must be paid, or a decision to
waive the fee must be made,
prior to acceptance of an
application for assessed disclosure
of information and that all other
fees must be paid, or a decision
to waive the fees, prior to
release of information following
determination of an application for
assessed disclosure of information.
10.3 Refining the application
A high number of applications
received within the current
framework are unclear for a variety
of reasons, from the nature of the
application (e.g. an application framed
much as a ‘Google’ request) through
to the applicant using a description
which does not fit within the general
understanding of the public authority
processing the application.
The obvious way to clarify the
application is to talk to the applicant
and to process the application based
on this ‘negotiation’. Most operative
level participants report that this is a
42
process that they currently follow and
they usually verify the adjusted scope
in writing (correspondence or email).
This process can be time consuming
and currently delays some requests.
This initial contact is also a chance
to direct the applicant to already
available sources which may result in
the request being withdrawn.
The working groups suggested that
the legislation allow for this process
and also allow for a maximum time
for undertaking this step before
the application becomes a live
application. Whilst not necessary
for all applications, particularly those
that are clear and straightforward,
this will allow for the refining of
complex applications and improve
overall timeliness of processing. This
negotiation period should not be
mandatory and the application can be
accepted for processing immediately,
once clarified or at the end of ten
working days following receipt,
whichever is the earliest.
Recommendation 24
The Right to Information Act 2009
provide for a negotiation period
during which public authorities
may work with the applicant to
refine or redirect their application
for assessed disclosure of
information. This negotiation is
not mandatory and if undertaken
it is to be completed expeditiously
and within a maximum of ten
working days.
Strengthening trust in Government - everyone’s right to know.
10.4 Timeframe for processing
The time taken to process an
application was the subject
of considerable comment by
contributors, both by those making
the application who felt that too
much time was taken and by public
authorities who felt that more time
was required. These comments both
ways were expected given that 1 in
5 applications are completed outside
of the 30 day statutory period. This
delay can occur for any number
of reasons, but some of those put
forward by contributors include:
• The need to consult third parties
in relation to personal information
almost invariably results in the
time limit being exceeded;
• The need to consult third parties
about information related to third
party business results in a similar
delay;
• The 30 calendar day timeframe
presents problems around public
holidays, particularly around
Christmas and Easter;
• The need to refine the application
prior to processing; and
• The complexity and volume of
some requests.
The review team do not favour a
significant change to the current
timeframe, but do see the need to
address some of the issue highlighted
by contributors. Firstly, we have
suggested, at Recommendation 24,
that an initial period of ten working
days be introduced to allow for
refining of the application.

The second and easiest response to
this issue is to change the 30 calendar
day requirement to 20 working days.
This period should be automatically
extended to 30 working days if there
is a need to consult third parties given
the nonsense that occurs with the
current Act providing for a 28 day
period for consultation, when 30 days
is allowed in total. The period for
comment by the third party should
also be reduced to 15 working days,
given the broad range of options
available to gain this input, including
email, phone, fax etc.
Thirdly, the current provision which
allows for negotiation of an extension
of time with the applicant should
be continued to allow for complex
and/or voluminous requests, of
course public authorities should be
undertaking this negotiation in the
early phases of the application as part
of negotiating the scope of the review.
If during the course of the review
it becomes apparent that the
complexity of the request or the
volume of information to be assessed
is such that the application cannot be
Strengthening trust in Government - everyone’s right to know.
determined within the maximum time
period allowed and in the opinion of
the authorised officer the applicant
is unreasonably refusing an extension
of time then the public authority
should have the ability to apply to the
Ombudsman for an extension of the
statutory time for determining the
application.
The approach in the Queensland
Right to Information Bill 2009 is for
an initial 25 working days with an
automatic extension to 35 days for
consultation with third parties.
Of course, regardless of the statutory
maximum time allowed for processing
of applications it is consistent with
the concept of proactive disclosure
that public authorities process
applications as quickly as practicable.
Recommendation 25
The Right to Information Act 2009
provide for an application for
assessed disclosure of information
to be determined as soon as
practicable but in no more than
20 working days following the
acceptance of the application.
Recommendation 26
The Right to Information Act 2009
provide for an extension of
the maximum 20 working days
timeframe for determination of
an application for an assessed
disclosure:
• by agreement with the applicant;
or
• if agreement cannot be reached
and the application is complex
and/or voluminous in nature and in
the opinion of the public authority
the absence of agreement is
unreasonable then by application
to the Ombudsman.
Recommendation 27
The Right to Information Act 2009
provide for a maximum period of
15 working days for third parties
to comment on an application
for an assessed disclosure of
information.
Recommendation 28
The Right to Information Act
2009 provide for an automatic
extension of the maximum period
for determining an application
for an assessed disclosure to 30
working days where there is a
need to consult with third parties
about the release of information.
43
10.5 Transfer of Applications
The current scheme for the transfer
of a request in the FoI Act 1991 was
felt to work well when discussed with
agencies and only one submission
commented on the process and that
comment was about the internal
workings of a public authority in not
recognising that they had received a
transfer – this highlights a problem
addressed in the current Act; which
provides that the timeframe for
determination is calculated from
date of receipt of the transferred
application or from a deemed date
of receipt in circumstances where a
transfer takes more than 14 days.
Consistent with the approach we
have already recommended we do
feel, however, that one change should
be made to the provisions, converting
14 calendar days to 10 working days.
Recommendation 29
The Right to Information Act 2009
provide for similar provisions for
transfer of an application for an
assessed disclosure of information
as are in section 14 of the FoI Act
1991.
10.6 Internal Review
The current scheme for internal
review of an authorized officer’s
decision by the principal officer or
her/his delegate in section 47 of
the FoI Act 1991 was again seen
as working well when discussed
with most contributors, although
several contributors and a least one
submission felt that internal review
44
was merely a rubber stamp and a
means of delaying the process further.
This is at odds with the feedback
from operative level staff; who all
reported instances of having decisions
overturned on internal review.
It still needs to be noted that,
particularly with regular users of the
FoI process, that regard for internal
review is low. This was addressed in
the Queensland review where the
Expert Review Panel recommended
that internal review be available, but
not as a precondition of external
review. The review team favour
this approach, but concluded after
feedback from Dr David Solomon, a
member of the Queensland panel and
an advisor to this review, that a non
compulsory internal review process
should be balanced by the ability for
the Ombudsman to direct an internal
review if s/he considers it will aid her/
his processing of the external review.
Section 47 allows for an application
for internal review to be lodged
within 28 days of notice of the original
determination, this is an appropriate
period and the review team
concluded it should continue, but
for consistency be converted to 20
working days. The effect of this is that
having received a determination an
applicant would have 20 working days
to either apply for internal review or
external review, although the time
for application for an external review
would be extended if an internal
review is requested (see table 10 later
in this paper).
Whilst section 47 does not put
a limit on time for processing an
Strengthening trust in Government - everyone’s right to know.
internal review, section 48 allows for
an application for external review,
by the Ombudsman, if the internal
review is not completed within 14
days. It would aid understanding of
the legislation to have the timeframe
expressed in the provision dealing
with internal review. Again the length
of time was seen as an appropriate
time frame as the information
gathering phase has already been
completed. For consistency the review
team feel this should be expressed as
10 working days.
Recommendation 30
The Right to Information Act 2009
provide for similar provisions for
internal review of a determination
of an application for an assessed
disclosure of information as are
in section 47 of the FoI Act 1991.
Internal review should not be a
precondition of external review.
10.7 Reasons for Determination
The FoI Act 1991 requires that in
making a decision to not release all
or parts of information requested,
the decision maker must provide
the applicant with reasons for that
decision as well as for information
about the right to seek a review. This
requirement goes to the fundamental
core of FoI, that is, transparency and
accountability.
This requirement to produce reasons
was explored with contributors and
the review team concluded that
it was poorly understood and not
universally applied. In his submission
the Tasmanian Ombudsman states:
“Reviews are made much
harder to carry out by the
frequent – almost universal,
in my experience – failure of
agencies to comply with their
obligations under s22 of the
Act to state findings of fact with
reference to the materials on
which the findings are made, to
give reasons, and, if applicable,
to state the public interest
considerations upon which the
decision was based.”69
Public authorities would be aided by
clear guidelines and even templates
which would assist them in the
preparation of reasons. This would
be particularly the case for the
majority of public authorities who
are dealing with very small numbers
of requests and therefore preparing
reasons on a very infrequent basis.
One example of a guideline which
may assist can be seen in this extract
from the Ombudsman’s submission to
this review:
The Ombudsman suggests that it
would aid him in undertaking his
review function, as well as aiding
applicants, if he were given the
power to require better reasons as
is proposed in the draft Queensland
Bill71. The draft Bill requires that the
better reasons be provided within 20
working days.
Given our findings and the clear
statement from the Ombudsman,
the Review team concluded that
a provision similar to section 22
needed to be continued and that its
operation would be improved if the
Ombudsman had to power to require
better reasons to be prepared. As
with the internal review function the
Review team see this as a function
which draws on existing information
and as such, one which could be
fulfilled within 10 working days, so as
71 Clause 97 of the Consultation Draft of the
Queensland Right to Information Bill 2009.
to not overly extend the timeframe
for review.
Recommendation 31
The Right to Information Act 2009
provide for similar provisions for
the preparation of reasons for
decision as are in section 22 of the
FoI Act 1991.
Recommendation 32
The Right to Information Act 2009
provide for the Ombudsman,
in considering a review in
accordance with the RtI Act,
to require a public authority to
provide the Ombudsman with a
compliant statement of reasons
for decision as soon as practicable,
but in no more than 10 working
days after receiving notification
of the requirement from the
Ombudsman.

“It is very good practice for a

decision-maker in FOI to make
a schedule of the documents
that need consideration,
and to work through them
methodically, making a
determination on each one.
This is an important discipline in
making sure that all documents
within the request are identified
and appropriately assessed.” 70

69 Submission to the Review of the Freedom

of Information Act 1991, Ombudsman
Tasmania, 2
70 Ibid, 5

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45
11 EXEMPTIONS
11.1 Exemptions in the FoI Act 1991 A large amount of the comment
received on specific exemptions was

Table 8: largely technical in nature and sought

to clarify its application. Some of this
Exem pti ons i n th e Freedo m o f In f o rm a t i o n A c t 1 9 9 1 will be achieved by revisiting each
Section: Title: exemption as part of a ‘plain English’
23 Executive Council information, &c. rewrite.

24 Cabinet information

25 Information not relating to official business 11.2 Exemptions in the RtI Act
26 Information communicated by other States, &c.
2009
27 Internal working information    As already explored and detailed
28 Law enforcement information in chapter 9, the review team have

28A Information affecting national security, defence or international relations

concluded that a public interest
test should be applied generally to
29 Information affecting legal proceedings  
most, but not all, exemptions. This
30 Information affecting personal privacy
approach to the public interest is
31 Information relating to trade secrets, &c., of undertakings
broadly similar to the approach in the
32 Information relating to trade secrets, &c., of agency Queensland review. The Queensland
32A Information relating to functions of Director of Public Prosecutions review also concluded that a limited
32B Information relating to Law Society number of exemptions should be
33 Information obtained in confidence applied without referral to a public
interest test. Again an examination
34 Information on procedures and criteria
of the exemptions proposed in this
35 Information likely to affect State economy
chapter also led us to conclude that
35A Information likely to threaten endangered species, &c.
a small number should be applied
without the specific application of an
At an issues identification forum held in December 2008 and addressed by Dr
overarching public interest test.
David Solomon and Mr Rick Snell, two of the expert advisors available to the
review team, the questions of exemptions were explored with participants. This Adopting this approach it becomes
discussion is illuminating in that it does identify a number of problems with the necessary to rework some
exemptions, but also advocates for a tightening of the exemptions by providing exemptions and indeed may mean
for application of an overarching public interest test to most exemptions. 72
that some listed here are redundant.
This will become clearer once drafting
72 Report of the Issues Identification Forum, PDF Management Services and Department of Justice, of the legislation has occurred.
December 2008, 8-9

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46
The issue of exemptions is also
explored in detail in both the recent
Queensland and NSW reviews,
and in the older ALRC/ARC report.
A detailed examination of those
considerable works more than informs
an examination of the exemptions in
the Tasmanian Act. This is particularly
true as there is no overwhelming case
mounted for significant change to
the range of exemptions, but instead
the move for change is in how they
are applied in relation to the public
interest.
11.3 10 year exemption
It was noted by review team that in
reaction to Cabinet Information and
Internal Working Information that the
Queensland Review recommends
a reduction in that State of an
exemption period of 30 years down
to 10 years, whereas the current
Tasmanian provision is 10 years.
There was general acceptance that
10 years was still a very significant
exclusion period extending beyond
the life of two parliaments, with a
maximum four year cycle applying
in Tasmania. One submission
recommended abolishing the
period, whereas the working
groups concluded a reduction was
consistent with the new direction
of the legislation. The review team
concluded that a 5 year exclusion
period would be appropriate and
consistent with the parliamentary
cycle.
Strengthening trust in Government - everyone’s right to know.
11.4 Cabinet and Internal or the platform of the party of
Working Documents Government. In major deliberative
processes these options should
“FoI has also become a
be presented and their relative
significant part of partisan
merits argued before Ministers
politics. Politicians use FoI to
and Governments make their
gain information to engage
final decisions. The fear is that
in the robust business of this
these documents will, through FoI,
process. At one level this is
become part of partisan political
perfectly reasonable but what
debate inhibits senior public
also becomes part of the public
servants, who have no desire to
record is the often messy and
unreasonably embarrass a Minister
discordant nature of decision
or a Government, and certainly
and policy making in Executive
does not encourage Ministers
Government. In partisan politics
to seek robust presentation
this is presented as ‘Minister
of the ‘counterfactual’ or the
overrides Department’ of
uncomfortable but worthy
‘breakdown between Minister
alternative position. It is all very
and senior public servants’. This
well for some to say ‘the current
is not that senior public servants
Act exempts such debate’ but
do not want to give ‘frank and
while this is not accepted by the
fearless’ advice but the practical
practitioners in the process they
reality is that selective use of
will not change their behaviours.
written material debating the
merits or otherwise of decisions • As a corollary to the above verbal
or policies can seriously advice between senior public
damage essential relationships servants and Ministers has come
between Ministers and their too dominant. For many senior
departments. public servants the creation
of written material gives them
 Now it may well be that all
the opportunity for research,
such discourse is reasonably
reflection, the receiving of advice
exempt under Part 3, 27(i) but
from staff and internal debate.
I can assure you that lack of
Verbal discussion with Ministers
certainty has changed, for the
is important but is limiting. It
worse, the process of debate
depends on personal availability,
on policy and decisions. In
verbal skills, personal relationships,
particular:
immediate availability of
• senior public servants are far less information, capacity to retain
likely to craft analytical written information and mental acuity.
material including presentation of In many cases some of these
options they know are contrary attributes are absent in part or
to the positions of Government entirety.
47
 So, my position would be
this. While transparency in
Government is important we
should place great value on
the role of the senior public
servant in providing robust
and comprehensive advice
to Ministers on decisions and
policy making. Failure to do
so will place more and more
influence in the hands of
Ministerial staff and individual
Ministers and will inevitably
decrease the confidence of
the community that all views
have been aired and debated.
We should recognise that
good decision making is often
a messy and occasionally an
acrimonious process and there
are great risks if that process
is exposed to public scrutiny,
particularly through the lens
of partisan political rhetoric.
I am reminded of that old
saying that goes something like
“neither the making of meat
pies or public policy should be
observed too closely”.
 If the current review does
nothing else it would have
been of great value if it could
give certainty to executive
government that the essential
but often discordant process
of advising on decisions and
policy can be carried out
without the suspicion that
the record of them will enter
the public domain with the
risk that they will be used to
embarrass the parties. I assure
48
you that currently there is no
such certainty and the quality of
policy advice is suffering.” 73
This strongly worded advice
from Peter Hoult, a retired state
service Secretary, highlights the fine
balance which applies in respect of
these exemptions, and particularly
that relating to internal working
documents.
The counter argument is also
succinctly put by the NSW
Ombudsman in his report:
“Contrary to this claim,
knowing that what they say
may be made public should
improve the standard of advice.
It ought to cause staff to check
information and structure
their work in a professional
manner. These are surely good
developments. Difficult and
controversial decisions will
always have to be made, and
these decisions will be more
defensible if they are supported
by honest, professional and
clear advice.” 74
The review team concluded that the
deliberative processes of government
are important and it is in the public
interest that they be, so-called, “frank
and fearless”. The review team
recommends that the wording of
this provision be clarified to make its
intent clear and we also concluded
that guidelines in relation to induction
73 Submission to the Review of the Freedom
of Information Act 1991, Mr P Hoult, 2009, 2
74 Opening up government: Review of
Freedom of Information Act 1989, NSW
Ombudsman, 2009, 57
Strengthening trust in Government - everyone’s right to know.
of staff in administrative law and the
practicable aspects of version control
and what constitutes a record are also
essential.
Of course this clarification, which
may be seen as a tightening up of the
release, needs to be seen as balanced
by the earlier recommendations which
would encourage Ministers and public
authorities to release information in
a similar way as in section 12 of the
current Act:
“This Act does not prevent and
is not intended to discourage
an agency or a Minister
from publishing or providing
information (including exempt
information), otherwise than as
required by this Act.”
Further checks on this also comes
form the reduction of the exemption
period from 10 years to 5 years and
for a recommended specific provision
attached to these exemptions which
allows for information to be released
at the discretion of the Premier or
Minster as the case may be.
11.5 Information from other
Jurisdictions
The Department of Treasury and
Finance (Treasury) asked for specific
clarification of the exemption
relating to information obtained
from other States, Territory and the
Australian Government. Advice from
interstate was that the provisions
of the current section 26 and/or 32
did not satisfactorily allow for other
jurisdictions to share information, in
particular revenue information, on the
understanding that it could not be
released. Treasury have had advice
from other jurisdictions that they
would not share some information for
this reason.
The review team concluded that
it was necessary to clarify this and
that the use of a public interest test
in conjunction with a specific, well
established test would be appropriate.
The specific test should be along
the lines of: “would be contrary to
the public interest as it would be
reasonably likely to impair the ability
of a public authority or a Minister
to obtain similar information in the
future”.
11.6 Legal Professional Privilege
During the process of the review
considerable discussion was devoted
to when the current “information
affecting legal proceedings” applied
and should there be a public interest
test. The review team concluded
that the language in the section
should be clarified and relied on the
NSW Ombudsman in his report for
concluding that a public interest test
should apply:
“Legal professional privilege
is an important legal principle,
but it is not an inalienable
right. Many of those who
have made submissions to this
review reacted very strongly
to the suggestion that a
public interest component be
included when an agency is
considering refusing access to
documents on the grounds of
Strengthening trust in Government - everyone’s right to know.
legal professional privilege. They
suggested privilege is claimed as
a matter of course, seemingly
without consideration of its
appropriateness. Only one
submission recognised that an
agency can choose to waive
privilege, even where the
documents legitimately attract
the protection.
We have published guidance
around some of the situations
where it may be appropriate
for an agency to waive privilege.
This could include documents
that:
• contain information likely to
contribute to positive and
informed debate about issues of
serious public interest, or reveal
significant reasoning behind
decisions made by the agency that
affect or will affect a significant
number of people
• set out only factual or technical
matters
• show how agency policy affecting
the rights or interests of members
of the public,
• was created
• are reports of finalised
investigations or inquiries, or
inspections carried out by public
officials arising out of events or
circumstances that have resulted
in damage or injury to the
member of the public seeking
access to the report
• show how an agency has dealt
with a complaint made by the
person seeking access
• contain the best or only evidence
of matters that affect the rights
or interests of the person seeking
access
• will assist or allow proper inquiry
into possible deficiencies in the
conduct of the agency or its staff
(for example, by exposing or
removing suspicion of significant
impropriety) or
• will otherwise significantly
contribute towards the public
accountability of the agency or its
staff.
We would hope that agencies would
take an approach similar to that put
forward by the Office of the Director
of Public Prosecutions [NSW] in its
submission, namely that:
… in all matters even though
not specifically stated when
considering exemption clauses
the issue of public interest must
play a role. To provide for a
specific public interest test in
this clause would not overly
complicate matters and could
assist the decision-maker.”75
11.7 Consultation with a
Third Party
The Ombudsman indicates a need
to clarify the consultation with third
parties provision in the current
sections 30 and 31 and suggested
that the wording in a similar clause
75 Opening up government: Review of
Freedom of Information Act 1989, NSW
Ombudsman, 2009, 57, 58
49
in the Draft Queensland Right
to Information Bill would be a
76
better approach. Essentially the
Ombudsman is suggesting that it not
be necessary to consult in respect
of every third party involvement,
but only on those where there may
be ‘substantial concern’ for the third
party.
The review team concluded that the
Ombudsman’s suggestion was an
appropriate change as it would result
in a more expeditious process for the
less contentious situations where ‘no
comment’ is the most likely outcome.
11.8 Exclusion of a Public
Authority
As already discussed we are
proposing a change to how an
authority is defined in or out of
the Right to Information Act (see
Recommendation 11). For this
reason the exemption of certain
bodies by a specific clause, such as
those in Section 32A and 32B of the
current Act will be rolled into that
approach and no longer required.
Some consequential amendment to
other legislation may also be required
to implement this approach, e.g.
Section 33A of the Ombudsman Act
1978 exempts the Ombudsman from
the FoI Act.
11.9 Exemptions in other
legislation
“All exemptions from the Act
should sensibly be found in the
76 Clause 37 of the Consultation Draft of the
Queensland Right to Information Bill 2009.
50
Act. Examples of exemptions
which are not can be found
in s 16(7) of the Children,
Young Persons and their Families
Act 1997 and s 33A of the
Ombudsman Act.”77
The review team concluded that
the Ombudsman’s suggestion in his
submission is consistent with the
approach of this review. It would
certainly give greater clarity and
provide greater transparency if all
exemptions were provided for in one
place.
Generally these exemptions fall into
two categories; they are either a
general exemption for a particular
public authority, such as the general
exemption of the Ombudsman, or
they are exemptions for particular
information, such as the provisions
relating to closed meetings of
Councils78. The former will be
subsumed into the recommended
approach to defining a public
authority; the latter may need to be
specifically provided for in the RtI Act.
11.10 The “Other” Public
Authorities
It is important to acknowledge
that councils and the University
of Tasmania sit in unique positions
as public authorities. Councils are
funded through a mix of State and
Australian Government funding
coupled with revenue from levying
77 Submission to the Review of the Freedom
of Information Act 1991, Ombudsman
Tasmania, 5
78 Clause 34 (5) of the Local Government
(Meeting Procedures) Regulations 2005
Strengthening trust in Government - everyone’s right to know.
rates due to State law, but their
governance is through an elected
body with a level of oversight by a
Government Department.
The University is set up through
State Statute, but is mainly funded by
the Australian Government and its
governance is broadly to that level of
Government.
These present particular issues for
both organisations in trying to apply
the FoI legislation as it does not fully
fit their models of operation. The
review team concluded that the
differences presented by the operating
models of these organisations, in
particular, should be reflected in the
language of the exemptions as part of
the plain English rewrite.
11.11 Process for Applying
exemptions
The model suggested in the draft
Queensland Bill creates a two
step process to assessing whether
information is exempt79. The first is
to assess if the information is exempt
by its nature and the second is to
assess any other information as to
whether it is contrary to the public
interest to disclose the information
taking into account the public interests
factors in the legislation.
To a significant degree the review
team are suggesting a similar two step
process for applying the exemptions.
The suggested model here only varies
in that at the second step we are
79 Clause 46 and 48 and Schedule 3 and 4 of
the Consultation Draft of the Queensland Right
to Information Bill 2009
suggesting that if the information is
not within a defined category then it
need not be assessed and therefore
must be disclosed. The review team’s
conclusion on this model is not
dissimilar to the approach suggested
by the NSW Ombudsman in his
report.
The first is to assess whether the
information is exempt because of its
nature, that is it information in any of
the following categories:
• Executive Council information
• Cabinet information
• Information not relating to official
business of a Minister
• Information affecting national
or state security, defence or
international relations
• Law enforcement and related
information
• Legal professional privilege
The second is to assess if it is
information in one of the following
categories and, if it is, to then assess
whether it is contrary to the public
interest to disclose the information,
using the schedule of non-exhaustive
public interest factors (see
recommendation 15 of this paper) as
the basis of assessment:
• Information communicated by
other jurisdictions
• Internal working information of a
public authority  
• Personal information of a third
party
Strengthening trust in Government - everyone’s right to know.
• Information relating to business 11.12 Summary of RtI
affairs of a public authority Exemptions
• Information obtained in Table 9 is provided to give readers
confidence from a third party a sense of the conclusion which
the review team have drawn from
• Information on procedures
contributions and discussion during
and criteria used in certain
this process. The review team see
negotiations of a public authority
the application of exemptions as a
• Information likely to affect State major part of the guidelines issued by
economy the Ombudsman.
• Information likely to affect cultural,
heritage and natural resources of
the State.
The Tasmanian Ombudsman has
advised the project manager that his
preference is for the adoption of the
Queensland approach contained in
the draft Right to Information Bill as it
will provide simplicity in explaining the
approach to Agency staff and assist
his office in assessing applications for
review.
As already stated, the review team
recognise merit in the Queensland
approach and have adopted the
broad concept. The review team,
however, concluded that it would
assist in a push model to indicate that
information within a defined scope
should be the subject of an application
for assessed disclosure and if the
information required is not within that
scope then it should be released as a
matter of course. The review team
concluded that this approach would
lead to greater routine and/or active
disclosures of information, which is
consistent with the thrust of these
reforms.
51
Table 9:

Exem pti ons i n th e Righ t to In f o rmatio n A c t

Title: Comment:

Exempt by the nature of the information:

Executive Council information, &c. Largely similar to FoI Act. (s.23)

Cabinet information Reduce period that exemption should apply from 10 years to 5 (five) years.
Provide for Premier to release information even if otherwise exempt.

Information not relating to official Largely similar to FoI Act.(s.25)

business

Information affecting national or state Clarify in respect of some situations, e.g. dignitary protection, pandemic management, registers
security, defence or international of dangerous goods.
relations

Law enforcement and related Extend concept “endanger the life or physical safety of a person” to include broader aspects of
information emotional and psychological safety of a person and likelihood of harassment or discrimination.
Should be inclusive of information gathered or created for criminal intelligence, such as the
intelligence database, DNA database and ‘crimestoppers’.

Legal professional privilege   This is more correctly referred to as protection for legal professional privilege and the language
in the provision should reflect this.

Exempt only if “contrary to the public interest” to disclose:

Information communicated by other Apply the public interest test but include a specific test of “would be contrary to the public
jurisdictions interest as it would be reasonably likely to impair the ability of a public authority or a Minister
to obtain similar information in the future”.

Internal working information of a Better define the category of information which is internal working information, include
public authority   information provided in briefings to Minister (see Qld Review)
Reduce period that exemption should apply from 10 years to 5 (five) years.
Provide for Minister to release information even if otherwise exempt.

Personal information of a third party
Need to provide notice to third parties where “it might be reasonably expected to be of
substantial concern”.
A right of review accrues to the third party.
Replace the term “information relating to personal affairs of a person” with “personal
information” and define the latter in the interpretation section.

Information relating to business affairs Need to provide notice to third parties where “it might be reasonably expected to be of
of a third party substantial concern”.
A right of review accrues to the third party.
Would assist application if the Ombudsman’s guidelines clarified the factors to consider when
determining what constitute “competitive disadvantage”.

Information relating to business affairs Would assist application if the Ombudsman’s guidelines clarified the factors to consider when
of a public authority determining what constitute “competitive disadvantage”.

Information obtained in confidence Apply the public interest test, but include a specific test of “would be contrary to the public
from a third party interest as it would be reasonably likely to impair the ability of a public authority or a Minister
to obtain similar information in the future”.

Information on procedures and Largely similar to FoI Act (s.34).

criteria used in certain negotiations of
a public authority

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52
Information likely to affect State
economy
Information likely to affect cultural, Largely similar to FoI Act (s.35A).
heritage and natural resources of the
State.
Other changes to exemptions:
Information exempted by other
legislation
‘Other’ public authorities
Recommendation 33
The Right to Information Act
2009 provide for exemptions as
outlined in Table 9 of this paper.
Strengthening trust in Government - everyone’s right to know.
Largely similar to FoI Act (s.35).
Part of the transitional arrangement for the RtI Act should be to rationalise all exemptions
in the one Act. Some may fall into the exempt by nature category, e.g. child protection
information, others may fall into the area where the public interest test should apply.
Clarify in language, or in separate section, how exemptions apply to non core state service, e.g.
Local Government and University.
11.12 Copyright
There is also considerable discussion
in the working groups about the
overlap of copyright with FoI and how
this should be applied in disclosure
of information. The review team
concluded that generally this was
dealt with by varying procedures
and was highlighted by a particular
problem for local government in
relation to development applications
and lodgement of plans and the like.
Several solutions present without the
need to include them in legislation
and the review team concluded
that there should not be a specific
exemption but it should be an issue
covered in guidelines.
53
12 ROLE OF THE
OMBUDSMAN
Throughout this paper the role of the
Ombudsman has been commented
on either in passing or by way of a
direct recommendation. Specifically,
the role of the Ombudsman in
Tasmania in a proactive disclosure
environment includes:
• Publishing guidelines about the
operation of proactive disclosure
generally and on the operation of
the legislation specifically;
• Delivering professional
development about the operation
of the legislation as required;
• Providing advice and guidance to
public authorities and applicants,
as appropriate;
• Creating a data base of notable
decisions to assist authorised
officers and review officers in
their decision making in respect of
assessed disclosures;
• Considering applications for
extension of time from public
authorities;
• Undertaking reviews of decisions,
as provided for in the legislation;
• Declining a review in certain
circumstances;
• Referring points of law to the
Supreme Court; and
54
• Declaring an application to be a
vexatious application.
In compiling this chapter the review
team note the following comment
from the Ombudsman:
“Whilst it is presently
manageable for the
Ombudsman to carry out
review functions under the Act,
and some limited educational
activity, it is unrealistic to
expect the Ombudsman to
take responsibility for carrying
out the full range of functions
expected of the commissioner
under ss 122 to 127 of the
rba [the Queensland Right
to Information Bill] at the
same time as fulfilling all of
the offices other functions as
both Ombudsman and Health
Complaints Commissioner.”
In ascribing the role outlined here to
the Ombudsman the review team are
aware that it is important to negotiate
further with the Ombudsman about
the resources required and to
clarify these with Government. The
role of Ombudsman is essential
to the reforms in this paper. The
Premier has announced a review
of the resources for the Office of
the Ombudsman as part of the ten
Strengthening trust in Government - everyone’s right to know.
point plan80 for strengthening trust in
Government and these reforms need
to be part of that review. There is
the ability to do this during the next
phase, before the review progresses
to Cabinet approval and the probable
drafting of a new Act.
12.1 Understanding the Right to
Information Act
A recurring theme in feedback to this
review has been the lack of clarity, the
confusion which arises, the variance in
decision making and generally a lack of
detailed understanding. Contributors
familiar with the Freedom of
Information Act manual published
by the Department of Premier and
Cabinet were positive about its
contribution in the early phases of the
implementation of the FoI Act 1991.
However the manual was produced
in 1993 and whilst still in general
circulation it has not been updated
since then. (One source states that
the manual was actually withdrawn in
late 1993.)
There is a general consensus that a
manual or the like is essential and that
it is only of value if it is kept current
and reflects current trends.
80 See section 4.2 of this paper – background
to this review.
Dovetailing with this is the publishing
of decisions. Until recent times
decisions made by the Ombudsman
were not available to other than the
interested parties. The Ombudsman’s
website now has some decisions of
note from 2006, 2007, 2008 and 2009
and operative level staff are starting
to find these of great assistance in
understanding the operation of the
legislation.
The third aspect of this is the need
for professional development to
be available for authorised officers,
particularly those in public authorities
who have infrequent and low
numbers of applications for assessed
disclosures. This training could be
provided on a fee for service basis
and authorised officers should be
required to attend at least one
professional development activity
annually. Promotion of the RtI Act
generally to staff and the community
must be the responsibility of all public
authorities.
Recommendation 34
• The Right to Information Act
2009 provide for the Ombudsman
to prepare and publish guidelines
on the operation of the RtI Act.
12.2 External Review
As is clearly indicated throughout
this paper the review team, and
indeed all contributors, see the
need for external review. However,
contributors highlighted a number of
problems with the present external
review process, chief among them
being the timeframe. The issue of
timeframe is not just one of resources
within the Ombudsman office to
deal with FoI, but also one of a need
to finetune processes in agencies
and in the legislation to ensure that
reviews can be dealt with in a more
timely and effective manner. It has
also been highlighted that at least one
deficiency in the legislation has led
to some reviews being conducted in
accordance with the Ombudsman Act
1978, adding to the complexity.
The review team have been
influenced heavily by the submission
of the Ombudsman and the
Queensland review in reaching
its conclusion on the right to, and
process for, external review. The
purpose of the Right to Information
Act is to ensure access to information
so as to increase accountability of
government and as such the Review
team concluded that a robust external
review process can only strengthen
the move to ensure proactive
disclosure.
For the ease of understanding
following table is a suggested model
for external review based on the
major references used to inform
this paper. The model also seeks
to address the procedural concerns
raised by the Ombudsman in his
submission to this review.

It is within the scope of the review

of the FoI Act project to develop
the first version of the guidelines, in
consultation with the Ombudsman,
for use in the implementation of the
Right to Information Act. Similarly
the first versions of the professional
development tools are within the
scope of the present project. These
products will both be prepared prior
to proclamation of the RtI Act in early
2010.

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55
Table 10:

Pr oposed Ext ern al Review Pro c ess

Topic: Proposal:

External Review External review shall be undertaken by the Ombudsman on application received:
• within 20 working days of the applicant receiving notice of the outcome of an internal review or the
expiry of the statutory time period for processing an internal review whichever is later; or
• where the applicant elects not to seek an internal review within 20 days of receiving notice of the
original determination.

Right of Review Review can be sought by an applicant where:

• an application for assessed disclosure of information has been refused or deferred;
• a decision has been made that the information requested is not a record or was not in existence on
the day the application was made;
• a decision to give access other than in the form requested by the applicant, except where to do so
would breach copyright;
• an application for assessed disclosure of information has been determined and all or part of the
information is exempt information;
• there has been a determination that the information requested is not a record or in the possession
of the minister or a public authority;
• the applicant believes, on good grounds, that there is an insufficiency in searching for the information
by the Minister or public authority;
• there has been a determination of a fee for access to a document, other than the application fee; or
the public authority has not complied with the statutory timeframe;
• The applicant is a ‘third party’ aggrieved by a decision to release personal information or business
information pertaining to them.

Powers of the Ombudsman The Ombudsman have the following powers and rights when considering an application for review:
on Review • to decide on the form and content of an application for review;
• to decide on the process for dealing with the review;
• the examine witnesses if appropriate to the process of the review;
• to direct an internal review, if one has not already been completed;
• to identify opportunities for early resolution, including conciliation;
• to promote settlement of the review application;
• to decide the parties involved in the review;
• to make any preliminary enquiries necessary to determine the power to review or to decide if to
proceed to review;
• to decline an application for review that is vexatious, which lacks substance, or which is not actively
progressed by the applicant (e.g. they do not cooperate or become un-contactable);
• to decline to an application where the applicant fails to comply with the directions of the
Ombudsman in connection with the progress of the review;
• to direct a public authority to provide better reasons for decision, including if necessary a schedule
of documents;
• to give direction on the procedure to be followed on review;
• to make compulsory requests of the parties to the review, related to the conduct of the review;
• to full and free access to the records of a public authority and to require that access in a particular
form, including the information under review; and
• to make application to the Supreme Court on a question of law.

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56
Onus of Proof The public authority has the onus to show that they have grounds for the determination they have
made and it is open to the Ombudsman to overturn a decision if that onus is not discharged.
A third party who seeks review has the onus to show that there are grounds for the personal
information or business information should not be released and it is open to the Ombudsman to
overturn a decision if that onus is not discharged.

Timeframe External review by the Ombudsman is to be conducted with as much expedition as the requirements
of the Right to Information Act and a proper consideration of the matters before the Ombudsman
allow. The Ombudsman is to take steps to resolve the matter at the earliest opportunity.

Decisions on Review The Ombudsman has the same power to:

• make a determination as the original decision maker;
• direct her or his decision to be implemented by the public authority within a period not to exceed
20 working days; or
• in the case of an application in respect of a failure to meet the statutory timelines: grant an
extension of time to the public authority or proceed to determine the original application.

Ombudsman Review of own Ombudsman will have the discretion to make available to interested parties a draft decisions in
decisions respect of a review and seek input from the parties prior to making a final decision.
Once a decision is made final it may only be reconsidered to correct a ‘slip’.

Recommendation 35
The Right to Information Act 2009
provide for an expanded right to
review (compared to the FoI Act
1991) and for increased powers
for the Ombudsman on review
(compared to the FoI Act 1991)
as outlined in Table 10 of this
paper.

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57
13 REFUSAL OF
A P P L I C AT I O N S
13.1 Substantial and unreasonable diversion of resources this provision if greater guidance
were provided. In particular it was
Section 20 of the FoI Act 1991 provides for refusal of an application in certain
highlighted that in respect of complex
circumstances: data which is stored in specific
electronic systems it may be that the
public authority employs very few staff
20. Requests may be refused in certain cases with the skills to extract the data and
the diversion of those staff to deal
(1) If – with a request has at times interfered
(a) a request for information is expressed to relate to – with the usual ‘business’ that those
staff were required to undertake.
(i) all information of a specified kind; or

(ii) all information in respect of a specified subject-matter; and One example from a small authority
was the need to divert the authorities’
(b) the agency or Minister dealing with the request is satisfied sole management accountant to
that the work involved in providing the information requested – produce information for a FoI
(i) would substantially and unreasonably divert the resources of request whilst at the same time the
the agency from its other work; or authority was attempting to provide
information to Cabinet in relation to
(ii) would interfere substantially and unreasonably with the an expenditure review process. In
performance by the Minister of the Minister’s other functions – another example, a public authority
having regard to – which routinely provides specific data
to a large number of people had to
(iii) the amount of that information; and delay the release of that data as the
(iv) any difficulties that exist in identifying, locating or collating two staff, with the skills to extract
the information within the records of the agency or of the office and produce the data, were required
of the Minister – to undertake a specific programming
task to extract data to meet an FoI
the agency or Minister may refuse to provide the information
deadline.
without undertaking the processes referred to in paragraph (b)(iv).
Contributors felt that an
interpretation of the current provision
that the entire resources of the
Contributors at the issues forum associated with this type of request it organisation were the benchmark for
and in the working group process is important to have this provision, but this section did not take into account
suggested that it is not clear how this that it would aid both applicants and the small number of staff who may
applies. All felt that given the costs public authorities to better understand have the skills or experience to

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58
deal with the application. On the
other hand working groups felt that
outright refusal should not be the
first option and that there needed to
be the ability to extend the time for
responding or to defer the application
to a future period.
A similar provision applies in NSW
and the NSW review considered
it appropriate, subject to a level of
clarification81:
“There was general agreement
in submissions that the factors
set out by the ADT [NSW
Administrative Decisions
Tribunal] are appropriate to
guide an agency in assessing
whether an application might
constitute an unreasonable
diversion of resources. The
current Act provides that an
agency can refuse access to a
document:
if the work involved
in dealing with the
application for access to
the document would, if
carried out, substantially
and unreasonably divert
the agency’s resources
away from their use by the
agency in the exercise of
its functions.82
The ADT has set out a number
of factors which it considers to
be relevant when an agency is
making this assessment.
Factors which the ADT
considered relevant to an
assessment of whether the
81 Opening up government: Review of
Freedom of Information Act 1989, NSW
Ombudsman, 2009, 79
82 Section 25(1)(al) FOI Act 1989 (NSW)
Strengthening trust in Government - everyone’s right to know.
application might constitute
an unreasonable diversion
of resources included the
following:
(a) the terms of the request,
especially whether it is of
a global kind or generally
expressed request; and in that
regard whether the terms of
the request offer a sufficiently
precise description to permit
the agency, as a practical
matter, to locate the document
sought within a reasonable
time and with the exercise of
reasonable effort;
(b) the demonstrable
importance of the document
or documents to the applicant
may be a factor in determining
what in the particular case
are a reasonable time and a
reasonable effort;
(c) more generally whether
the request is a reasonably
manageable one giving due,
but not conclusive, regard to
the size of the agency and
the extent of its resources
available for dealing with FOI
applications;
(d) the agency’s estimate as
to the number of documents
affected by the request, and by
extension the number of pages
and the amount of officer-time,
and the salary cost;
(e) the timelines binding the
agency;
(f) the degree of certainty that
can be attached to the estimate
that is made as to documents
affected and hours to be
consumed, and in that regard
importantly whether there is a
real possibility that processing
time may exceed to some
degree the estimate first made;
and
(g) possibly, the extent to
which the applicant is a repeat
applicant to the agency in
respect of applications of the
same kind, or a repeat applicant
across government in respect
of applications of the same kind,
and the extent to which the
present application may have
been adequately met by those
previous applications.
The ADT indicated that these
factors are not an exhaustive
list of possible considerations.”83
Whilst the list of factors outlined
by the ADT would address most of
the concerns and points made by
contributors, the review team would
suggest that two further factors
should be included:
• The outcome of negotiations
with the applicant in attempting
to refine the application and/
or extend the timeframe for
processing the application; and
• The extent of the resources
available to deal with the specific
application.
For the purpose of providing
transparency and clarity and to also
achieve a level of flexibility in the
application of this provision the
review team concluded that a non
exhaustive list of factors to consider
when applying this provision, based on
the list above from NSW, should be
included as a schedule to the Right to
Information Act 2009.
83 NSW FOI Manual 2007, at 4.5.10
59

Recommendation 36
The Right to Information Act 2009
provide for similar provisions for
refusal of an application for an
assessed disclosure of information
as are in section 20 of the FoI Act
1991.
Recommendation 37
The Right to Information Act 2009
include a Schedule providing a
non-exhaustive list of the factors
which must be taken into account
in refusing an application as it
would result in a substantial
and unreasonable diversion of
resources.
13.2 Repeat Applications
The comments of contributors to this
review in relation to the very small
number of applicants who lodge serial
applications for the same or similar
information are consistent with this
extract from the NSW Ombudsman’s
Review report:
“Members of the public can
apply under the FOI Act for
documents as many times
as they want. We know a
number of agencies have
difficulties with individuals
who make unreasonable
and repeat applications and
as a consequence become
a significant drain on public
resources.
The FOI Act is intended
to provide transparency in
60
government and agencies need
to be appropriately resourced
to fulfil this objective. As raised
in the discussion paper, there
are several groups of people
such as journalists and MPs
who use the Act frequently as
a tool to legitimately obtain
information to help them with
their work.
However, there is no public
interest served in agencies
using considerable resources
to deal with a small number of
persistent individuals repeatedly
seeking access to the same or
related documents, some of
which are legitimately exempt.
As part of a joint Australian
Ombudsman project about
unreasonable complainant
conduct, strategies to deal
with repeat applications have
been analysed. The experience
from a range of jurisdictions
shows that a small number of
people exercise their statutory
rights to make FOI and privacy
applications in ways that
unreasonably impact on the
resources of agencies, create
significant equity considerations
in relation to the ability of other
applicants to exercise their
rights and sometimes adversely
impact on the health and
welfare of agency staff. While
the number of these kind of
applicants is small, their conduct
or activities can have significant
cost implications for agencies
and external review bodies. For
Strengthening trust in Government - everyone’s right to know.
example, just two applicants are
the subject of approximately
30% of the ADT’s FOI related
decisions since 2004.”84
A suggestion from contributors to the
NSW Review is:
“Submissions to the discussion
paper gave general support
for agencies to have the ability
to refuse applications (subject
to rights of external complaint
or review) based on excessive
numbers of applications for
documents about the same
or similar issues over a 12
month period where dealing
with them would unreasonably
divert resources away from the
agency in the exercise of its
functions.
For instance the Office of the
Director of Public Prosecutions
[NSW] said:
It may be prudent to
ensure agencies are not
subject to repeat FOI
applications and to place
restrictions within the
legislation is therefore
appropriate”.85
The motivation in raising this by
contributors related to the resources
taken and again the review team
defer to the comments of the NSW
Ombudsman:
“We are not concerned with
an applicant’s motive, and
84 Opening up government: Review of
Freedom of Information Act 1989, NSW
Ombudsman, 2009, 87
85 Ibid
 certainly not their personality.
Rather the issue is one of
equity; the unreasonable impact
on the resources of agencies
caused by a limited number of
people applying repeatedly for
documents about the same or
closely related issues. Repeat
applications from a small
number of individuals can take
up a disproportionate amount
of agencies’ finite resources
with a corresponding impact on
other work, including dealing
with other applications.”86
The review team concluded, as did
most contributors and other recent
reviewers, that the step to refuse on
the basis of repeat applications is a
high level discretion and on that basis
we concluded that the decision should
be made following guidelines issued
by the Ombudsman and subject to
external review by the Ombudsman.
Recommendation 38
The Right to Information Act 2009
provide for a public authority to
be able to refuse an application
for the assessed disclosure of
information on the basis that it is
a repeat application. The decision
should be subject to review on
application to the Ombudsman.
Recommendation 39
The Right to Information Act 2009
provide for the Ombudsman to
issue guidelines on the factors to
be considered when considering
86 Ibid, 88
Strengthening trust in Government - everyone’s right to know.
a decision to refuse an application
for the assessed disclosure of
information on the basis it is a
repeat application.
13.3 Vexatious applicants
“I would also value the wider
power to declare an applicant
vexatious. This is proposed for
the information commissioner
in Queensland (rib, Chapter 3,
Part 10), and is also the subject
of a recommendation in the
NSW report (see section 7.7
at p 87). I regard the proposed
approach in Queensland as
preferable, for it is not as
limited in scope. About four
years ago the situation arose
in which one individual put in
more than 40 applications for
review in the one year, and I
have received more than 12
reviews from another individual
in the past 12 months. I do not
say that either applicant would
have been declared vexatious if
the power existed, but it would
be a useful power…”87
The issue of the vexatious applicant
is one which is debated in most if
not all examinations of complaint
handling processes. Whilst a process
of making an application for release of
information is not strictly a complaint
handling process, applications are
often associated with, or in tandem
with, complaint processes. This
connection between the need to
87 Submission to the Review of the Freedom
of Information Act 1991, Ombudsman
Tasmania, 6
rectify an injustice, or perceived
injustice, and the need to gain access
to information is certainly supported
by a number of the individuals who
submitted an outline of their “case” as
a study to assist this review. (That is
not to say that any of the submissions
were from people who would meet
the category of a vexatious applicant.)
The Ombudsman submits that this
is a real issue for this area of his
work and it certainly is an issue in
NSW and Queensland resulting in
recommendations to make changes in
those jurisdictions.
On balance the review team
concluded that the inclusion of
a power for the Ombudsman to
decline an application for review that
is vexatious, which lacks substance,
or which is not actively progressed
by the applicant (see table 10), along
with the recommendations earlier
in this chapter, would appear to be
sufficient to deal with the instances
of so-called vexatious applicants and
in combination provides a wider
response than in the NSW and as a
result the review team do not prefer
the provision in the Queensland
Bill, which was favoured by the
Ombudsman.
What we are proposing is a means
of dealing with vexatious applications
rather than vexatious applicants,
an approach that seems more
appropriate to the way FoI has
worked in Tasmania.
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14 G OV E R N A N C E
14.1 Decision Makers
Following consideration of the present
arrangements and the feedback
particularly that from operative level
staff and users the review team
concluded that there should be three
levels of decision maker defined in the
legislation:
• principal officer;
• responsible officer; and
• authorised officer.
The principal officer is the same
concept as in the current legislation.
However the Ombudsman in his
submission requests that the review
consider clarifying the principal
officer in terms which make it clear
that it is the chief administrative or
operational officer, for instance in
local government the principal officer
should be the General Manager,
not the Mayor or in a government
business enterprise the Chief
Executive Officer, not the Board
Chairperson. The principal officer
should also be responsible for the
publishing of information in relation
to disclosure of information under the
Right to Information Act in the public
authority’s annual report.
The responsible officer is the person
vested with the development
62
and implementation of proactive should be developed as part of this
disclosure in a public authority. project for use by public authorities.
Generally this would be a senior
These officers will have decision
person involved in records and
making powers and it is important
information management in an
that they have the support of the
organisation. The responsible
legislation in specifically stating that
officer should also co-ordinate
as a RtI Act decision maker they are
the professional development of
independent and will act impartially in
authorised officers and the general
their decisions.
development of staff in relation to
the Right to Information Act. The
Recommendation 40
responsible officer may also be an
authorised officer. The Right to Information Act 2009
provide for three statutory roles
An authorised officer is an officer
within each public authority,
appointed by the principal officer to
namely the principal officer,
determine applications for assessed
the responsible officer and the
disclosure of information. This officer
authorised officers.
would also be available to advise
the community on the application
of the Right to Information Act
Recommendation 41
in their particular public authority.
The Right to Information Act 2009
The authorised officer should be
provide that authorised officers
appointed for a maximum of three
are appointed for a renewable
years and the principal officer
term of up to 3 years and that
should certify that the person s/
prior to appointment the principal
he is appointing has the skills and
officer is to ensure that the officer
knowledge to undertake the role.
s/he is appointing has the skills and
The review team is familiar with knowledge to make determination
a similar competency test for on application for assessed
appointment in the Mental Health disclosure of information.
Act, which is administered by a self
paced training and assessment tool
and concluded that a similar tool
Strengthening trust in Government - everyone’s right to know.

Recommendation 42
The Right to Information Act 2009
provide that decision makers
making decisions in accordance
with the Act are independent
decision makers and are to
act impartially in making those
decisions.
14.2 Reporting
In accordance with the administrative
arrangements applying to the FoI
Act 1991 the Secretary of the
Department of Justice, through the
Attorney General provides an annual
report to Parliament on the operation
of the Act. This practice is sound and
should be continued in the Right to
Information Act 2009. In addition the
principal officer is responsible for the
publishing of information about the
operation of the FoI Act in her or his
agency annual report.
The Ombudsman is then separately
able to comment on Freedom
of Information and its application
through his annual report to
Parliament and again this provides for
Strengthening trust in Government - everyone’s right to know.
independent comment outside of the
operational arm of government and
should continue.
Recommendation 43
The Right to Information Act
2009 provide for three levels of
reporting:
• the Secretary of the state service
agency administering the Right to
Information Act 2009 provide an
annual report to Parliament on the
operation of the Act.
• The principal officer of
each public authority provide
information on information
available from her/his authority
and also on the operation of the
Act in her his authority as part of
her/his annual report.
• The Ombudsman provide to
parliament a report on the Right
to Information Act 2009 and its
application from the perspective
of the review body within her/his
annual report.
14.3 Offences
Several submissions outlined what
they believed to be a need for there
to be accountability in the legislation
by making certain actions an offence.
The consensus of operative level
staff was that this would strengthen
the legislation. Management level
staff felt that it would strengthen the
independence of decision making to
create offences in connection with
interfering with the operation of the
Act.
The review team concluded that it
should be an offence to interfere with
the assessed disclosure of information.
Recommendation 44
The Right to Information Act 2009
provide for it to be an offence to:
• Obstruct, unduly influence
or interfere with an Authorised
officer, an officer determining
an internal review or the
Ombudsman and his or her staff in
the exercise of the power to make
decisions in accordance with the
RtI Act.
• Deliberately or improperly fail
to disclose information which is
the subject of an application for an
assessed disclosure of information,
other than in accordance with the
RtI Act or another Act.
63
15 MAJOR REFERENCES
1. Discussion Paper: Review of the Freedom of Information Act 1989, NSW Ombudsman, September 2008

2. The Right to information: Reviewing Queensland’s Freedom of Information Act – The Report by the FOI Independent
Review Panel, State of Queensland, June 2008

3. Open Government: a Review of the Federal Freedom of Information Act 1982, Australian Law Reform Commission
Report No.77 and Administrative Review Council Report Number 40, 1995

4. Blacked Out: Government Secrecy in the Information Age, Alasdair Roberts, Cambridge University Press, 2006

5. The Right to Know: Transparency for an Open World, Edited by Ann Florini, Columbia University Press, 2007

6. Opening up government: Review of Freedom of Information Act 1989, NSW Ombudsman, 2009

7. Full Disclosure: The Perils and Promise of Transparency, Fung, Graham and Weil, Cambridge University Press, 2007

8. What is Transparency?, Richard W Oliver, McGraw-Hill, 2004

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1 APPENDIX ONE
Submissions Received:

1. A Brief Case for Reform – Mr R Snell (Received: 29 May 2008)

2. Submission for Consideration of Change to the Freedom of Information Act 1991 – Auditor General Tasmania
(Received: 7 October 2008)

3. Review – Freedom of Information Act 1991 – Ombudsman Tasmania (Received: 21 October 2008)

4. Issues Identification Forum Report December 2008 – Department of Justice (Received: 5 January 2009)

5. Review of the Freedom of Information Act – Media Entertainment and Arts Alliance (Received: 7 January 2009)

6. FOI Legislation – Mr S Lester (Received: 10 January 2009)

7. Review of the Freedom of information Act – Mr B Holderness-Roddam (Received: 27 January 2009)

8. Submission to the Review of the Freedom of Information Act 1992 – Mr R Stubbs (Received: 31 January 2009)

9. Re: FOI – Mr P Hoult (Received: 2 February 2009)

10. Submission in Relation to a Review of Freedom of Information Act 1991 – Housing Tasmania (Received: 3 February
2009)

11. Submission in Relation to a Review of Freedom of Information Act 1991 – DHHS – Human Resources (Received:
3 February 2009)

12. Review of Freedom of Information Act 1991 – Mental Health Services (Received: 3 February 2009)

13. My Submission to the Review of the Freedom of Information Act 1991 – Ms E Ross (Received: 4 February 2009)

14. FOI Act Improvements – University of Tasmania (Governance and Legal) (Received: 6 February 2008)

15. Launceston City Council Submission to the Review of Freedom of Information Act 1991 – Launceston City Council
(Received: 10 February 2009)

16. Review of the Freedom of Information Act 1991 – M & K Mars (Received: 11 February 2009)

17. Review of the Freedom of Information Act 1991 – Mr M Holmes (Received: 11 February 2009)

18. Submission – Review Of The Freedom Of Information Act 1991 – Ombudsman Tasmania (Received: 12 February
2009)

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65
 19. My submission to the exciting work of the Freedom of Information Act review project team – Mr G Todd (Received:
13 February 2009)

20. Letter (including comment) – Ms T-L Sexton (Received: 13 February 2009)

21. Submission for the review of the Freedom of Information Act (1991) – CPSU (SPSFT) (Received: 13 February
2009)

22. Submission to the Review of the Freedom of Information Act 1991 – Department of Primary Industry and Water
(Received: 13 February 2009)

23. Submission to the Review of the Freedom of Information Act 1991 – Tasmanian Council of Social Services
(Received: 13 February 2009)

24. Freedom of Information Act: A personal view – Mr P Randall (Received: 13 February 2009)

25. Review of the Freedom of Information Act: Submission to expand to include the Coroners Act 1995 – Mrs R
Weeding (Received: 13 February 2009)

26. Review of the Freedom of information Act 1991 – Mr M Johnson (Received: 13 February 2009)

27. Review of Tasmania’s Freedom of Information Act 1991 – Tasmanians for a Healthy Democracy (Received: 16
February 2009)

28. Treasury Submission to the Review of the Freedom of Information Act 1991 – Department of Treasury and Finance
(Received: 16 February 2009)

29. Review of the Freedom of Information Act 1991 – Department of Environment, Parks, Heritage and the Arts
(Received: 19 February 2009)

30. Review of the Freedom of Information Act 1991 – Environmental Defenders Office (Received: 20 February
2009)

31. Review of the Freedom of Information Act 1991 – Department of Education (Received: 23 February 2009)

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2 A P P E N D I X T WO

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 Strengthening trust in Government - everyone’s right to know.
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3 APPENDIX THREE
President Obama’s Statement to bureaucracy on the US Freedom of Information Act

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