FOI reform Bill introduced into Parliament

The Freedom of Information (Miscellaneous) Amendment Bill 2020 (FOI Amendment Bill) proposes the most extensive changes to South Australia’s freedom of information (FOI) laws since the Freedom of Information Act 1991 (FOI Act) was enacted nearly 30 years ago.

The changes range from small miscellaneous amendments to much more significant reforms which bring the FOI Act more closely into alignment with other jurisdictions which underwent similar reforms roughly a decade ago. The FOI Amendment Bill is available here.

Many of our clients will already have been aware of the draft Freedom of Information (Miscellaneous) Amendment Bill 2019 released for public consultation late last year. Normans was pleased to host a lunchtime briefing discussing all aspects of that draft Bill. The FOI Amendment Bill which has now been introduced into Parliament is very close to the draft version, albeit with a few changes.

For those not already familiar with the proposed reforms, some of the key proposals are as follows:

• “Proactive disclosure” requirements, whereby certain agencies specified in a policy to be issued by the Premier will be obliged to publish regularly requested information (e.g. credit card statements, travel expenditure) without any person needing to make an FOI application for that information;
• “Disclosure log” requirements, whereby specified agencies will need to maintain publicly available records detailing specified information regarding FOI applications made to the agency;
• Amendments to the objects of the FOI Act and the public interest balancing test, designed to create a presumption in favour of disclosure in some cases;
• Increasing time limits for dealing with applications and internal reviews;
• Providing further grounds and clarity regarding the circumstances in which an agency can refuse to deal with an application;
• Stronger powers for the Ombudsman as external reviewer, including the power to refer a matter back to the agency for a new determination.

Readers who are already familiar with the draft Bill should note the following ways in which the FOI Amendment Bill differs from the version which was the subject of public consultation:

• It is no longer proposed that all agencies must prepare a disclosure log; rather, only those agencies identified in the Premier’s disclosure log policy must do so. However, as indicated below, we consider it is likely that some form of disclosure log requirement will indeed be imposed upon councils.
• The proposal to limit what documents are deemed to be ‘held by or in the possession of an agency’ to just those documents ‘made or received by the agency in the exercise of its functions or in the conduct of its business’ has been abandoned.
• It is no longer proposed that an agency may simply refuse to continue dealing with an application once 40 hours of work have been undertaken on that application. However, the FOI Amendment Bill still proposes that, if an agency determines that it is likely that an application will take more than 40 hours’ work to deal with, then it is taken to be the case that the work involved in dealing with the application would substantially and unreasonably divert the agency’s resources (and so the agency may refuse to deal with the application on that basis, after having first endeavoured to assist the applicant to limit their application).

The above lists are not exhaustive; rather, they represent what we see as some of the most noteworthy elements of the FOI Amendment Bill, from the perspective of Local Government.

Two of the ‘headline’ aspects of the FOI Amendment Bill, namely proactive disclosure and the maintenance of disclosure logs, have already been requirements at a State Government level (despite not yet being legislated in the FOI Act) for some time by virtue of Premier and Cabinet administrative policies. The FOI Amendment Bill, if passed in its current form, leaves it up to the Premier to decide whether or not proactive disclosure and disclosure log requirements will be extended to Local Government. Interstate experience suggests that these requirements are indeed likely to be imposed upon councils, in some form. Accordingly, the FOI Amendment Bill is in our view likely to have a particularly significant impact upon Local Government in South Australia, as it will introduce administrative processes and obligations which are already familiar to State Government but are entirely new to South Australian Local Government.

The FOI Amendment Bill has only just been introduced in the House of Assembly, and so it remains to be seen whether and in what form it will ultimately become law. We will continue to monitor the progress of the FOI Amendment Bill. In the (very likely) event that the FOI Amendment Bill is passed largely in its current form, we look forward to assisting the sector in adjusting to what will be a very significantly changed FOI landscape.

For more specific information about any of the matters discussed in this article, please contact Felice D’Agostino on 8210 1202 or fdagostino@normans.com.au or Dale Mazzachi on 8210 1221 or dmazzachi@normans.com.au or Chris Alexandrides on 8210 1299 or calexandrides@normans.com.au.