SA Introduces Bill To Make Updates To Freedom Of Information Act

Thursday 16 April 2020 @ 9.24 a.m. | IP & Media | Judiciary, Legal Profession & Procedure | Legal Research

On 8 April 2020, the SA Attorney-General, V. A. Chapman MLA, introduced the Freedom of Information (Miscellaneous) Amendment Bill 2020 (the Bill) into the SA Legislative Assembly. The Bill represents a major change to the state's freedom of information laws.

Key Amendments

In broad terms the Bill is intended to "update ...[the Freedom of Information Act 1991 (FOI Act)]... in line with legislative developments interstate and changes in technology". The aim is to better reflect electronic communications and information management and storage – including establishing limits around what an agency is expected to do in producing a document from data stored electronically.

The Bill also seeks to strengthen the objectives of the FOI Act to enhance transparency and open government.

Further, the Bill creates an offence for "improperly directing or influencing a decision or determination" made under the FOI Act.

Detailed Overview

Legislating current requirements: The Bill gives legislative backing to a number of Freedom of Information (FOI) requirements currently operating through government policies but not actually legislated.  The Bill legislates for "proactive disclosure" of government information and publication of disclosure logs so that these requirements can be extended beyond state government agencies to FOI Act agencies, such as councils and South Australian universities, where it would be beneficial. In this respect the Attorney-General states in her second reading speech that:

"By legislating for proactive disclosure and disclosure logs, all agencies and their officers who publish information under these provisions will receive the protections under liability contained in the FOI Act, including protections against actions for defamation or breach of confidence . . ."

Presumption in favour of disclosure: The Bill seeks to strengthen the presumption in favour of disclosure by proposing to amend the "objectives" provisions of the FOI Act and by providing guidance about "how public interest factors" are to be taken into account in determining applications for access to information. Further, the 10-year rule for the release of cabinet submissions is also to be included in the FOI Act.

Documents cannot be found: The Bill proposes providing that refusal of access to documents on the basis that "documents cannot be found or do not exist" is to be a reviewable determination - reversing the decision by the SA Civil and Administrative Tribunal (SACAT) in El Shafei v Central Adelaide Local Health Network [2017] SACAT 5. The change proposed is to be further supported by amendments which give the Ombudsman specific powers to require an agency to explain what searches were undertaken and allowing the Ombudsman on external review to remit deemed or inadequate determinations back to the agency for reconsideration. Along with this are changes increasing the Ombudsman's powers on external reviews to obtain documents from agencies.

Improperly directing or influencing: The Bill proposes the creation of an offence of "improperly directing or influencing a decision or determination made under the FOI Act". A change according to the Attorney-General, recommended in 2014 and now to be included. As well the Bill makes amendments to preclude agencies from charging processing fees if they exceed the statutory time limit for giving access to information.

Electronic communication: The Bill makes amendments updating the FOI Act to reflect electronic communications and electronic information management and storage methods and includes setting limits around what an agency is expected to do in searching for and producing documents from an "electronic back-up system". Further, the Bill updates the FOI Act to recognise the specific challenges posed by dealing with access to CCTV and similar footage by clarifying that agencies may charge a fee for retrieval, viewing and redacting of "documents" (including de-identification such as pixelization of CCTV and similar footage where it is practicable).

Time limits: The Bill makes amendments extending the time agencies have to deal with an application from 30 to 45 days, and extending internal reviews from 14 to 20 days, as a measure to reduce the significant number of "deemed refusals". The Bill will provide a FOI Act section 19(2a) equivalent for internal reviews to facilitate the provision of access to documents after the internal review time limit has expired, ensuring agencies are covered by the liability protections of the FOI Act and reducing external reviews. Comparative changes are made to FOI Act section 39 to facilitate the provision of access to documents during an external review.

Extensions of time: The Bill makes amendments allowing applicants and agencies to negotiate extensions of time for dealing with access applications and for the agency's principal officer to extend the time limit where an unusually high number of applications have been received, including multiple related applications from an applicant or applicants acting in concert. The Bill also sets clearer limits around what is considered an unreasonable request for access.

The Ombudsman: The Bill proposes allowing the Ombudsman to declare an applicant "vexatious" on the Ombudsman's "own initiative or on the application of an agency". The result being that the Ombudsman or an agency may refuse to deal with an application by the person found to be vexatious - a declaration of this will however be reviewable by the SACAT.

Who may deal with applications: The Bill makes changes intended to provide greater flexibility on who may deal with FOI applications by removing seniority requirements for officers dealing with an FOI Act Part 4 "Amendment of Records" applications, because of the straightforward nature of such applications.

SACAT reviews: The SACAT review process under the FOI Act, has been, according to the Attorney-General, "streamlined so that external review applications must first be made to the Ombudsman". The reason for this is stated to be because "the Ombudsman has the investigative capability and is best placed to deal with the reviews at first instance". Further, review will then be available by SACAT, other than on the question of sufficiency of search, which is now reviewable under the FOI Act by the Ombudsman. Agencies will no longer be limited to reviews on errors of law and will also be able to apply to SACAT for a review of a determination that a document is not an exempt document. There is no change to the position that agencies must pay the other party's costs where an agency initiates the SACAT review.

Document and agency exemptions: The Bill makes changes to the "document and agency exemptions" in FOI Act schedules 1 and 2, these changes include:

  •  deleting the subcategories of document exemptions in schedule 1 of the documents containing unproved criminal allegations, since these should be covered by the existing exemption for unreasonable disclosure of personal affairs information, and documents relating to an agency's commercial activities, on the basis that this overlaps with the clause 7 business affairs exemption;
  •  merging the existing cabinet and executive council documents exemptions;
  •  exempting information and correspondence prepared by agencies for the purpose of an audit by the Auditor-General while the documents are in the possession of the agency, to maintain the integrity of the audit and reporting functions of the Auditor-General and ensure the Auditor-General's existing status as an exempt agency is not undermined;
  • exempting documents containing matters the disclosure of which could reasonable be expected to identify the location of threatened or endangered fauna or flora, or other rare items of cultural or scientific importance, and thereby endanger the safety of these species or items; and
  • including a limited agency exemption for the Office of Parliamentary Counsel in respect of the documents it holds that are subject to legal professional privilege, similar to the existing schedule 2 exemptions of agencies, such as the Solicitor-General, Crown Solicitor and the Director of Public Prosecutions.

Attorney-General's Comment on the Bill

In her second reading speech the Attorney-General said:

". . . this bill includes a range of measures designed to strengthen government transparency and accountability, to strengthen the public's 'right to know', as well as to further encourage and facilitate proactive release of government information by agencies. The Bill also includes measures designed to enhance efficiency and sustainability in administering the Freedom of Information Act in recognition that increasing efficiency in the administration of the legislation will also ultimately operate to enhance transparency and public access to information under the Act."

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Freedom of Information (Miscellaneous) Amendment Bill 2020 and second reading speech and explanatory memorandum as reported in the TimeBase LawOne Service.

Freedom of Information Act reform [Attorney General's Department Fact Sheet for Draft Bill]

Commentary on the Draft Bill - [YouSay SA Website]

El Shafei v Central Adelaide Local Health Network [2017] SACAT 5 (13 April 2017)

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