* BA(Hons)/LLB, MA teaches public law at the Law School, University of Tasmania and has been editor of the FoI Review for the last 5 years. The FoI Review is an Australian journal which has been at the forefront of access to information analysis and research for the last 14 years. An earlier and less ambitious version of this paper titled “Australian Freedom of Information: A promising start and a faltering finish?” was presented as a part of the Seminar in Government Information Policy - 23 March 1999. Constitutional Unit, School of Public Policy, University College London. The author would like to thank the civil servants, academics and policy specialists who vigorously questioned and explored the ideas advanced in that paper. Alasdair Roberts of Queen’s University, Ontario and Darius Whelan, University College Cork made significant suggestions for improvement of this paper. For comments on this paper contact r.snell@utas.edu.au
1. Alasdair Roberts, Limited Access: Assessing the Health of Canada’s Freedom of Information Laws, Freedom of Information Research Project, April 1998, School of Policy Studies, Queen’s University, at 47-50. Available at http://qsilver.queensu.ca/sps/
2. R. Snell Issues Paper Submission 31 cited in ALRC/ARC Report No 40 Open Government: A Review of the Federal Freedom of Information Act 1982 para 2.8, fn 24.
3. See the Sins of Commission and Omission section at the end of this paper.
4. See unpublished article Rick Snell, “The Kiwi Paradox - A Comparison of Freedom of Information in Australia and New Zealand”. Contact author for details.
5. Roberts, Limited Access, 10.
6. Roberts, Limited Access, gives documented Canadian examples on 10-11.
7. An example of this practice can be seen in Snell v Department of Premier and Cabinet, 1998 Unreported Decision, Tasmanian Ombudsman, dated 30 May 1998. A case study of this case is contained in an as yet unpublished article “The Kiwi Paradox - A Comparison of Freedom of Information in Australia and New Zealand”.
8. Roberts, Limited Access, 11.
9. Roberts, Limited Access, 11.
10. Alastair Morrison, “The Games People Play: Journalism and the Official Information Act,” in Legal Research Foundation, The Official Information Act: Seminar Papers General Overview of Official Information and the Official Information Act, February 1997, 30.
11. Roberts, Limited Access, 11.
12. See Morrison, “The Games People Play,” for New Zealand examples 32-34.
13. I. Eagles, Michael Taggart and Grant Liddell, Freedom of Information in New Zealand, Oxford University Press Auckland 1992. see R. Snell and H. Townley “The Cabinet Information Exemption: Theoretical Safeguards Exposed by a Tasmanian Case Study.” (1993) 46 FoI Review 42-45, Anne Cossins, “Uranium mining, Cabinet notebooks and redundant amendments to the Commonwealth FoI Act,” (1994) 52 FoI Review 42-44. Anne Cossins “Paving the way for less open government in Victoria: Amendments to the Cabinet documents exemption,” (1993) 45 FoI Review 27-30.
14. For an example see Chris Finn, “Getting the Good Oil: Freedom of Information and Contracting Out,” Australian Journal of Administrative Law, Vol 5 1998.
15. Donald C. Rowat, “Freedom of Information: The Appeal Bodies Under the Access Laws in Canada, Australia and New Zealand,” Australian Journal of Public Administration, Vol 52, No.2, 1993 at 218-219. Helen Sheridan and Rick Snell “Freedom of Information and the Tasmanian Ombudsman 1993-1996,” University Tasmania Law Review Vol 16 No. 2 , 107-159
16. Spencer Zifcak “Freedom of information: torchlight but not searchlight”, Paper presented at National Conference on Administrative Law, (1991) 66 Canberra Bulletin of Public Administration 162.
17. Anne Ardagh, “Freedom of Information in Australia: a Comparative and Critical Assessment” paper delivered at ALTA Conference, Western Australia 1991 reprinted in Roger Douglas and Melinda Jones, Administrative Law: Cases and Materials, The Federation Press 1993, 137-147 at 145.
18. Rick Snell, “The Torchlight starts to glow a little brighter: Interpretation of Freedom of Information Legislation Revisited,” Australian Journal of Administrative Law. August 1995 197-216. Anne Cossins, “Revisiting Open Government: Recent Developments In Shifting the Boundaries of Government Secrecy Under Public Interest Immunity and Freedom of Information Law,” Federal Law Review Vol 23 No.2 1995 226-276 at 263. Spencer Zifcak “Freedom of information: torchlight but not searchlight,” Paper presented at National Conference on Administrative Law, (1991) 66 Canberra Bulletin of Public Administration 162.
19. This was a view endorsed in ALRC/ARC, “Open Government,” at Para 4.4-4.6 and external review bodies in Queensland, Western Australia and Tasmania see Aboriginal and Islander Affairs, (1994) 1 QAR 60, Office of the Information Commissioner (WA) Re Read and Public Service Commission, Unreported Decision Ref D00194, 16 February 1994, NSW Ombudsman Guidelines issued in December 1994, at 3. Tasmanian Ombudsman in Snell v Tasmanian Development and Resources, 10 April 1995 Decision 95030080. However Australian Courts and tribunals have continued to reject this approach see News Corp Ltd v National Companies and Securities Commission (1984) 52 ALR 277, Arnold v State of Queensland 13 ALD 195, Searle v PIAC (1992) 108 ALR 163. Lunn J, Ipex Info Tech v Dept of Info Tech Services SA, unreported District Court South Australia, 16 June 1997, 7-10. A view endorsed by Trenorden, J in Sheppard v the SA Minister for Health, , unreported District Court South Australia, 8 December 1997, 4-5.
20. Information Commissioner of Canada, Annual Report – Information Commissioner 1993-1994, at 7. See Rick Snell “Rethinking administrative law: A redundancy package for FOI?” 1998 Administrative Law Forum, “Administrative Law and the Rule of Law: Still part of the same package?” Melbourne, 18-19 June 1998.
21. Madeline Campbell and Helen Arduca, “Public Interest, FOI and the Democratic Principle - A Litmus Test,” paper presented at INFO 2, 2nd Australian National Conference on Freedom of Information, Gold Coast, March 1996. First Annual Report of the Office of the Information Commissioner WA 1993-1994, 26. Zifcak, S “Freedom of information: torchlight but not searchlight”, Paper presented at National Conference on Administrative Law, (1991) 66 Canberra Bulletin of Public Administration 162. Anne Ardagh, “Freedom of Information in Australia: a Comparative and Critical Assessment” paper delivered at ALTA Conference, Western Australia 1991 reprinted in Roger Douglas and Melinda Jones, Administrative Law: Cases and Materials, The Federation Press 1993, 137-147 at 145. R. Snell “Hitting the Wall: Does Freedom of Information have staying power?” in Stephen Argument (ed) Administrative Law: Are The States Overtaking the Commonwealth? Australian Institute of Administrative Law 1996.
22. This interrelationship is explored in more detail in Rick Snell “Rethinking administrative law: A redundancy package for FOI?” 1998 Administrative Law Forum, “Administrative Law and the Rule of Law: Still part of the same package?” Melbourne, 18-19 June 1998.
23. See Morrison, “The Games People Play,” for New Zealand examples 32-34.
24. Gerry Kearney and Áine Stapleton, “Developing Freedom of Information Legislation in Ireland,” in A. McDonald and G. Terrill (ed) Open Government: Freedom of Information and Privacy, Macmillan Press Ltd 1998, 167-179
25. ALRC/ARC, “Open Government: A Review of the Federal Freedom of Information Act 1982,” Report No.77 at para 6.16.
26. ALRC/ARC, “Open Government: A Review of the Federal Freedom of Information Act 1982,” Report No.77 at para 6.17.
27. Ralph Nader, “Freedom From Information: The Act and the Agencies,” (1970) 5(1) Harvard Civil Rights - Civil Liberties Law Review, 14.
28. See Roberts, “Limited Access”.
29. Rick Snell, “In Search of the Freedom of Information Constituency: Case 1 - The Media,” (1998) 78 FoI Review 81-84.
30. Nigel Waters, Print Media Use of Freedom of Information Laws in Australia, Australian Centre for Independent Journalism, January 1999, 32-33.
31. Paul Chadwick, “Freedom of Information: How Queensland could do better…” in Posser, Wear and Nethercote (eds) Corruption and Reform - The Fitzgerald Vision, University of Queensland Press, St Lucia, 1990, 199.
32. Chris Wheeler Deputy NSW Ombudsman, “Public Sector Compliance with FOI in New South Wales”, Open Government Forum, Sydney February 8, 1999.
33. Cossins, Annotated Freedom of Information Act New South Wales: History and Analysis, examples given between paras 1.9.3-1.10.4.
34. NSW Auditor-General’s Report to Parliament 1998, Vol 2, 250-251
35. Nash identified significant problems with departmental records management in the Department of Premier and Cabinet in relation to FoI
36. See Morrison, “The Games People Play,” for New Zealand examples 32-34.
37. Information Commissioner of Canada, Annual Report 1997-98, page 2
38. Select Committee on the Parliamentary Commissioner for Administration, Second Report, Session 1995-96, “Open Government”, HC 84, para 111
39. Parliamentary Commissioner for Administration, Annual Report for 1995, page 51
40. Oral evidence to the Public Administration Committee, 2/12/97, Third Report, Session 1997-98, HC 398(1), Q34.
41. Memorandum to the Public Administration Committee, January 1998, Third Report, Session 1997-98, HC 398(1),
42. Parliamentary Ombudsman. Press release, 10/12/98