Chapter 13: Oversight of official information legislation

 

International freedom of information models

Australia

In five jurisdictions in Australia, freedom of information (FOI) matters are overseen by an independent Information Commissioner (Commonwealth, New South Wales, Northern Territory, Queensland and Western Australia). In these jurisdictions the Information Commissioner’s functions include complaints and review, oversight and monitoring, and the provision of advice and assistance. In the remaining three jurisdictions (South Australia, Tasmania and Victoria) freedom of information matters are overseen by an Ombudsman but only in Tasmania does the Ombudsman also have functions relating to guidance and policy advice. In South Australia and Victoria the Ombudsmen have limited roles similar to the situation in New Zealand.

Australian Commonwealth

The Office of Information Commissioner is a recent development in the Australian Commonwealth. It was established by the Australian Information Commissioner Act 2010 which creates a dedicated Freedom of Information Commissioner responsible for carrying out functions that can be categorised as adjudicative, oversight and monitoring, and advisory. The Department of Prime Minister and Cabinet is responsible for FOI policy and the management of the Freedom of Information Act across the Australian Government through its Privacy and FOI branch.

The Commissioner is responsible for promoting awareness and understanding of the legislation, assisting agencies to publish information in accordance with information publication schemes, providing information, advice, assistance and training to any person or agency about the Act, issuing guidelines, making reports and recommendations to Ministers, monitoring and reporting on compliance and reviewing the decisions of agencies, amongst others.746 The Federal Reforms also incorporated the Office of the Privacy Commissioner into the Information Commissioner’s Office.

These reforms were driven by election commitments made by the Labour Government which wanted to “restore trust and integrity” in the handling of government information.747 As part of this, it was thought necessary to create an independent Information Commissioner to carry out oversight of the new regime. During the second reading of the Freedom of Information Amendment (Reform) Bill 2009 it was said that:748

The establishment of an Information Commissioner and an FOI Commissioner, as independent officers, will address a long standing lacuna in effective FOI administration.

It was thought that the role carried out by the Ombudsman reviewing individual decisions was reactive in its approach and was not enough to support an effective freedom of information regime. The Australian Ombudsman echoed these calls, saying that a major shortcoming of Australia’s FOI regime:749

…is that it lacks an FOI champion, who is independent of government, has a dedicated role and powers, adequate funding, and a secure power base.

Queensland

In July 2009 the Queensland Parliament replaced its Freedom of Information Act with the Right to Information Act 2009. This retained the existing Office of Information Commissioner, which oversees privacy matters, and creates in addition a Freedom of Information Commissioner who is deputy to the Information Commissioner. As well as being responsible for complaints, this Commissioner has responsibility to carry out:

  • Support functions, including the provision of advice about interpretation and administration of the Act, giving information to agencies and requesters, promoting awareness of the Act within the community and within government through such activities as training and education programmes, and identifying and commenting on legislative changes that would improve the Act; and
  • Performance-monitoring functions such as auditing and reporting on agencies’ compliance with the Act, publishing performance standards and best practice for agencies, and reporting to Parliament the outcome of any review.

The Office of the Information Commissioner maintains a website referring to various publications and guidance material for agencies and requesters, comments on matters affecting freedom of information and provides training to agencies. The Right to Information Act 2009 is administered by the Department of Premier and Cabinet and the Minister responsible for the Act is required to produce annual reports to Parliament.

New South Wales

Following the Queensland review of its freedom of information law, the NSW Ombudsman carried out an extensive review of that state’s FOI laws and made over 80 recommendations for change. The Government Information (Public Access) Act 2009, creating a new Office of Information Commissioner, came into effect on 1 July 2010. The Commissioner is a statutory officer of Parliament, independent from the executive who is required to promote public awareness and understanding of the law as well as provide information, advice, assistance and training to agencies and the public. The Commissioner also has a monitoring role over agencies’ functions and may report to the Minister if legislative or administrative change is necessary. The NSW Information Commissioner Office and Privacy Commissioner Office are co-located, but each still exists under its own statute.

The NSW Department of Premier and Cabinet administers the freedom of information legislation and has produced, in conjunction with the Ombudsmen, an FOI manual containing a combination of guidance from the Ombudsman and official Government policy which state agencies must follow. Where there is inconsistency between Ombudsman’s guidance and Government policy, the Government’s view prevails. The Information Commissioner will issue guidance about the Act.750

Tasmania

Breaking away from the mould set by the Queensland and New South Wales reforms, the Tasmanian Government chose to retain the Ombudsman as its complaint body but gave the office an enhanced role with a number of oversight and reporting functions that it had not previously had to carry out.

Under the Right to Information Act 2009 the Ombudsman is required to issue and maintain guidelines relating to processes and provisions of the legislation. The Ombudsman may, on his or her own motion or in response to a request, provide oral or written advice to a public authority or Minister on the operation of the Act and must maintain a related manual. The Ombudsman is also responsible for reporting to Parliament annually on the operation of the Act and related matters. The responsible Minister is the Minister for Justice, and he or she is required to report annually to both Houses of Parliament on the operation of the legislation. The Department of Justice is responsible for the administration of the Tasmanian legislation.

United Kingdom

An Information Commissioner’s Office has had oversight of freedom of information matters in the United Kingdom since 2001 as well as of matters under the Data Protection Act 1998 (similar to our privacy legislation).751 The Commissioner is responsible for complaints, oversight and monitoring, and training and assistance on matters affecting access to information.

The Commissioner is responsible for approving model publication schemes, promotion of good practice by agencies, the promotion and dissemination of information about the Act, voluntary audits of agencies’ compliance, and reporting to Parliament annually on these matters. Reports are also made regularly to Parliament about compliance across the sectors or in response to specific issues such as the Ministerial veto of the decision to release cabinet documents relating to military action against Iraq.

The Ministry of Justice (UK) is responsible for the implementation of the Freedom of Information Act 2000 within Government, and administers the Act through a Data Access and Compliance Unit.752 This produces guidance for requesters and public bodies subject to the Act and an Annual Report on the operation of the Act in central government. The reports include statistics on request numbers and the proportion which result in information being released or withheld; comments on the legislative framework and outreach work, such as education. They also comment on key trends and issues for the future.

Ireland

Amongst the jurisdictions we looked at, Ireland is the only jurisdiction where the Information Commissioner can be a presiding Ombudsman. Each Office is governed by its own legislation with different powers and functions but they are carried out by the same person.

The Information Commissioner’s functions include reviewing complaints, oversight and monitoring and education and guidance. A Freedom of Information Central Policy Unit within the Ministry of Finance oversees freedom of information within Government. The Unit maintains a website which contains information, guidelines, and other resources relevant to both requesters and officials on freedom of information in Ireland.753

Under the Irish Freedom of Information Act 1997, the Minister of Finance is required to report annually to both Houses of the Oireachtas about the implementation and operation of the legislation, including training in Government agencies, organisational arrangements and any other matters the Minister believes affects the Act’s implementation.754 The Report includes the number of requests received in a given year, and general and specific statistics on the use and operation of the Act.

Australian Information Commissioner Act 2010 (Cth), s 8.

Australian Labor Party Government Information: Restoring Trust and Integrity (October 2007).

(26 November 2009) Australian Senate Hansard 12972.

Professor John McMillan, Commonwealth Ombudsman “FOI and Privacy Reform” (Presentation to a joint seminar of the Commonwealth FOI Practitioners’ Forum and the Privacy Contact Officer Network, Canberra, 26 June 2009) at 1.

See <www.oic.nsw.gov.au>.

See <www.ico.gov.uk>.

See <www.justice.gov.uk>.

See <www.foi.gov.ie>.

Freedom of Information Act 1997 (Ire), s 15.