Tuesday, 20 June 2023
Committees
Integrity and Oversight Committee
Committees
Integrity and Oversight Committee
Reference
That, under section 33 of the Parliamentary Committees Act 2003, this house refers an inquiry to the Integrity and Oversight Committee for consideration and report no later than 29 March 2024 on the operation of the following matters relating to the Freedom of Information Act 1982:
(1) the effectiveness of the act’s current policy model, which is based on formal requests for information, and other options available, including options utilised in other jurisdictions;
(2) mechanisms for proactive and informal release of information, including the effectiveness of information publication schemes;
(3) efficient and timely mechanisms for persons to access their own personal and health information;
(4) the information management practices and procedures required across government to facilitate access to information;
(5) opportunities to increase the disclosure of information relating to government services using technology;
(6) the purposes and principles of access to information and whether the act meets those purposes and principles, including:
(a) the object of the act as set out in section 3;
(b) the definition of document in section 5; and
(c) the operation of exemptions and exceptions in part III and part IV;
(7) the effectiveness of processes under the act and how those processes could be streamlined and made more effective and efficient; and
(8) the time and costs involved in providing access to information.
The Freedom of Information Act 1982 is now a 40-year-old piece of legislation. Under the current act, I am pleased to report nearly 80 per cent of FOI requests are processed within the time lines required by the act and more than 96 per cent of access decisions grant access to documents in full or in part. It is important to put on the record that the act has served us well in the past. I do want to acknowledge of course that it was the late former Premier John Cain who introduced freedom of information to Victoria as Premier of this state – a great reforming Labor Premier – and indeed his freedom-of-information laws are amongst much of his great legacy here. It is important and fitting that our government, another Labor government, move the motion to seek a referral to the Integrity and Oversight Committee (IOC) to review the act.
We know that despite the success that we have seen with the existing act we do need to keep pace with changes that have occurred in our society and community. We need a modern and accessible FOI act, one that makes it easier and more efficient for the public to access government-held information. Access to information legislation must reflect how a government creates, stores and manages its information in the digital information age. We know that better access to information and transparency is important for good governance, accountability and lawmaking while still protecting information from disclosure where the public interest requires it. We need an FOI act that reflects these principles, and a review of the FOI act provides an opportunity for Victoria to align its access to information policy with broader information management policies to enhance how the Victorian public sector manages its information.
As I have said, since we have been in government we have moved to reform the act from time to time to ensure that the system continues to work for Victorians and to make it fairer. These reforms have included the establishment of the Office of the Victorian Information Commissioner. This office has more investigative powers than the former FOI commissioner, such as the power to review decisions made by ministers or departments and various powers to compel the release of information following a review. The 2017 reforms also introduced faster response time frames for all FOI applications, but as always, there is more to do.
The FOI legislation has never been substantially reviewed and has not kept pace with how contemporary government works. The current act was passed in a predominantly paper-based environment. I know that we all – well, maybe not all of us; I certainly remember those days very well. But the pace of change has indeed been rapid, and it is important that we have a Freedom of Information Act that responds to that. We understand the prevalence now of electronic documents, but we also need to be mindful of what is actually a government document, what is a draft and what is the final product, so we need an act that can respond to some of that as well. Indeed these advances have changed how governments store and provide access to information, and this transformation through digital processes and data storage has contributed to information-rich governments. We now produce more documents than ever before, and as I said, we store them in a completely different format.
Other jurisdictions, including New South Wales and Queensland as well as the Commonwealth government, have adopted what is known as second-generation FOI legislation. This is legislation which encourages formal access requests as a last resort and in doing so reduces the total number of formal requests received by agencies in those jurisdictions. I certainly know as Minister for Health that there is a lot of work to be done to ensure that we are giving the people of Victoria greater access to information and easier access to information that is held about them in relation to their health, treatment and so on. We are committed to being able to deliver that.
What we know is that individuals are utilising FOI laws at ever-increasing levels to request access to information and that our laws require an individual to submit a formal request for information. In 2021–22, and I am sure this number will both astound and perhaps frighten members, Victorian government agencies received 43,978 FOI requests. This is the highest number of requests ever received in Victoria, and it has contributed to an overdependence on this very formal access model, rather than us taking the time, which is what we now propose to do, and exploring options to provide access to information proactively and informally. This consideration, as I said, is one that has been included in the terms of reference for this review.
Our government believes that individuals should not have to rely on FOI to access their personal documents. Victorian departments and agencies receive more FOI requests than any other Australian jurisdiction, including the Commonwealth. Victoria also receives one of the highest rates of FOI requests per capita. The majority of requests that departments and agencies receive are personal requests, as I mentioned earlier – requests which are for personal documents about the applicant. On average, personal requests represent almost 70 per cent of total requests received since 2014.
Individuals using FOI as the primary mechanism for accessing their own information is an inefficient use of their time and indeed an inefficient use of government resources. Individuals should be able to access their information through simpler means. I might take the opportunity just to share with you some information in relation to my own portfolio in order to illustrate this fact. I want to also take the opportunity to thank my department for the way in which they have sought to expediently manage requests and provide as much transparency as possible to people who have sought information from the department. During 2022–23 we received 349 FOI requests. This was a decrease, I might say, on the previous year, and that decrease was in relation to the number of requests that we were receiving about COVID. The department finalised 355 requests of which only seven were denied in full, so 98 per cent were granted in full or in part, and indeed 96 per cent of requests were processed within the statutory time frame. I do want to acknowledge my department for the work that they have done to make it easier to provide information to people and easier and simpler and faster for people to receive information that we believe they should be able to readily access.
How government departments and agencies communicate and inform the public of the work they do has also changed. Access-to-information legislation promotes greater transparency and accountability in government and enables the public to better understand the decision-making processes of government. The information management practices and procedures across government also need to be considered in the context of information access laws. The internet, through emails and cloud-based platforms, has replaced physical documents and briefs. These new ways of working need to be examined in the context of access-to-information laws, and I think this is something we can all agree upon. As I discussed earlier, the prevalence now of emails as a way to exchange and indeed to provide information and the way in which departments store their information – it might be news to some people that in fact we no longer keep everything in cardboard boxes. We no longer have the registries of old where all correspondence was kept and maintained. Indeed a lot of it, including the physical correspondence that is still received, ends up being scanned and stored in the cloud.
The FOI act is one of several integrity mechanisms that allow the public to scrutinise, participate in and have confidence in the work of government. This in turn promotes trust in government and indeed in the public sector. We were the first Australian territory or state to enact FOI legislation, and it is time to continue that very great legacy of that great Victorian Premier John Cain and once again lead the nation in this area of reform.
I commend this motion to the house. The time is right for there to be a review by a parliamentary committee of our freedom-of-information laws to ensure that they are fit for purpose and that they respond to the contemporary environment and to the changes that we have seen in technology, and I take this opportunity to commend the motion to the house.
James NEWBURY (Brighton) (13:44): The coalition will not be opposing the motion. However, I will move an amendment, and that is:
That after subparagraph (8) the following words be inserted: ‘(9) the long times taken to process FOI requests, including the deterioration of performance exposed by the Office of the Victorian Information Commissioner in its recent examination, the period of time taken by ministers for noting of requests, and the recent significant increases in challenges by agencies to the determinations of the information commissioner’s office.’.
It is important to sometimes start on a positive note, and it is time for Victoria to consider its freedom-of-information regime. There is no doubt that when you look around this country you see regimes that are different than ours, and the outcomes of those regimes are also different. The openness and transparency that those regimes allow or in fact promote are there for you to see, effectively because of the way that there is an onus on the regime to provide information. I think what we have seen over time is a growth in the number of applications, as should be the case with a growing population. I mean, it is only fair and reasonable that our governments, who are there to serve people, are open to the community and their workings are open to the community. That should be the case. But we have not just seen a growth in the number of applications, we have also seen a growth in the number of instances where the items are declined and declined for particular reasons, which I will get to later.
The coalition – the opposition – will not be opposing the motion, but we are proposing an amendment which speaks to some of those issues. In that amendment I refer to the Office of the Victorian Information Commissioner, who has done a power of work. I can refer to the five-year review of 2014–19, which is a significant document and a significant review. There has been more recent work, but I can refer to this particular review, which is a very strong document and which goes to a whole-of-government review of FOI in Victoria. One of the findings of the agency was that:
The number of FOI decision makers in Victorian government agencies decreased …
So as we have seen a significant increase in the number of applications, we have seen the government choose to reduce the number of decision-makers. The agency also found that:
Agencies processed most requests the within the statutory timeframe. However, timeliness in decision making decreased over time …
So the timeliness in the decisions that should be made to ensure we have an open and accountable government decreased over time, and that is very important to note. We have seen a decrease in the number of staff to process FOIs, and we have seen a decrease in the timeliness of decision-making. We have seen also:
… the percentage of full access decisions decreased over time …
What we have actually seen is less people taking longer to make decisions and less full details provided to the public. Far less full transparency is the simplest way to put it. To talk in simple terms, in 2014–15 full release was at 70.25 per cent and by 2018–19 at 64.8 per cent, effectively – so over a 5 per cent decrease in the full transparency of government workings.
In terms of partial release of information, the denied number of FOIs between 2014–15 and 2018–19 increased from 2.3 to 4 per cent – so almost a doubling of the number of items that have been declined. These are important findings, and I would certainly refer the community to this report by the Office of the Victorian Information Commissioner, because it is a power of work. Unsurprisingly, given the number of denials of full transparency, it is also worth noting that the number of complaints and reviews went up, both in terms of the information commissioner and VCAT. Both went up significantly. OVIC’s reviews increased from roughly 400 to 600 – so a 50 per cent increase – over that period of time. We have seen government choose to have less staff, the timeliness go down and the release of full information also go down, which is why the community is looking on and is upset – understandably so, because our government should be fully transparent.
More recently the information commissioner released a report, The State of Freedom of Information in Victoria, in April 2022, which covered the period of 2019 to 2021 – another very important document which speaks to the more recent behaviour of government when it comes to freedom of information and also to culture. The commission noted a number of trends that are worth speaking to. They are:
increased delays in the ability and capability of agencies to process FOI requests within statutory timeframes …
which have resulted in significant backlogs and delays,
an increase in complaints made to OVIC about delays and issues with handling of FOI requests; and
increasing use by agencies of the power under section 25A(5) to categorically refuse an FOI –
so just a flat refusal –
without identifying or processing any documents …
at all – so a flat refusal. What we saw in the first work done by the independent agency was a growth over time of that flat refusal and, in the more recent analysis, a serious and notable trend in that behaviour. That is why the agency did note that:
… FOI analysis continues to show the FOI Act no longer provides an optimal legislative scheme for the timely disclosure of information held by government.
That is why the coalition will not oppose the final motion but believes that it is worth amending to note those additional points.
Before finishing I will note I have referred to section 25A(1) and (5) and their use by departments and agencies in those refusals. One finding that is worth mentioning is:
Between 2019 and 2021, agency reliance on section 25A(5) almost tripled.
It almost tripled. That is a significant increase, from 10 to 30 per cent. These are significant behavioural changes that have a profound effect on the way the government operates in secret, and we know that this government does operate in secret. When we look at the information commissioner’s findings, we know that timeliness is an issue, full access to decision-making is an issue and sunlight is an issue.
The final point I will note is that effectively the government is referring these matters to a committee on which it has four members, the Liberal Party has one member, the National Party has one member and there is a Green and an independent. So it would be fair to say that the government is not in outright control but is in extremely strong control of this committee and has effectively referred the FOI process and transparency of government to a committee in a way that means the cheat will be in charge of the till. That should concern every Victorian, because it is about trust at the end of the day and we effectively are allowing a government which has caused many problems with the FOI act by not being transparent to be in charge of the review into the act. The coalition will be looking very closely at this throughout this inquiry, because it is important that Victorians have access to the information they deserve and have access to the operation of government. So the coalition will be very closely participating in this review to ensure that the cheats who are in charge of the till do the right thing in relation to freedom of information, because we should be doing better. When you look around Australia, we should be doing better, and we are not.
Nina TAYLOR (Albert Park) (13:55): I should just perhaps, for the purpose of this debate, say that we are moving this motion to seek a referral to the Integrity and Oversight Committee to review the Freedom of Information Act 1982. It is us that are moving this motion. Surely that lends itself to transparency and the enhancement of governance, the fact that we are proactively moving this motion. So the suggestion of secrecy or otherwise is a little questionable at best. I also want to pay homage to the lasting legacy of the late former Premier John Cain. This was certainly amongst many of the great reforms he accomplished during his terms, and it is consistent with our Labor record on improving and also upholding integrity. In terms of supporting good governance, accountability and lawmaking, we are moving this motion, so I take objection to some of the underhanded comments that have been put with regard to that.
I also want to say that, just as an example, in 2021–22 the Victorian government agencies received 43,978 FOI requests. That is a testament to the system that enables this to occur, and this is the highest number of requests ever received in Victoria. So I think when we are also questioning the processes that are occurring in this state, that is an extraordinary number of FOI requests. Some perspective has to be put with regard to this debate concerning the sheer number of requests put forward – not that we are questioning that in any way. It is also important to reflect on the percentages in terms of the actual statistics with regard to the processing of FOI requests. Under the current act we are pleased to report that nearly 80 per cent of FOI requests are processed within the time lines required by the act. More than 96 per cent of access decisions granted access to documents in full or in part, so with greatest respect, I think the member for Brighton may have been distorting the perception of how the actual FOI process is undertaken here and the statistics as they actually exist. Less than 4 per cent of all decisions are denied access in full.
I should also note that our government introduced reforms in 2017 to improve the FOI system, making it fairer. So again you can see consistency in terms of upholding good governance, integrity and transparency when it comes to our government or to the parliamentary processes overall. The 2017 reforms also introduced faster response time frames for all FOI applications. But there is more to do, and so if I can pick up on that point, it is fair to say the FOI legislation has never been substantially reviewed, hence the referral of this motion, and has not kept pace with how contemporary governments work.
This current act was passed in a predominantly paper-based environment, and of course we are in the digital age. We know that the way that documents are stored, owing to terrific advancements in technology, has to be acknowledged, and hence there is impetus for reviewing the way in which FOI requests are processed. We now produce more documents than ever before, and this is a good thing –I am not saying that is a negative – but we are storing them in a completely different format, and hence it is good and proper and timely that we are conducting this review.
I should also say, if we are compared to other jurisdictions such as New South Wales, Queensland and the Commonwealth government, they have adopted what is known as second-generation FOI legislation, which encourages formal access –
The DEPUTY SPEAKER: Order! The time has come for question time. The member will have the call when we return to the motion.
Business interrupted under sessional orders.