Privacy Law and Policy Reporter
Information Commissioner Fred Albietz says in his first report that demand for his services 'has significantly exceeded expectations'. In the first seven months of operation (to 30 June 1993) of the Freedom of Information Act 1992 (Qld), 120 applications for review had been received, an average of one per working day. By 30 June he had resolved 27 applications, seven by formal decisions, and 20 following negotiations.
The First Annual Report is an indispensable document for those wishing to understand the role of the Qld Information Commission, as it contains an extensive explanation of the Office's functions and powers, and how the Information Commissioner model is a new approach to FOI dispute resolution in Australia.
The Parliamentary Commissioner (Ombudsman) is also the Information Commissioner, unless another is appointed. Mr Albietz was appointed by virtue of his office as Parliamentary Commissioner. The Information Commissioner is the independent external review authority established by the FOI Act to investigate and review decisions of agencies and ministers specified in s 71(1), which includes most significant decisions. The review is a complete merits review of the decision and a formal determination by the Commissioner, in effect, substitutes for the decision of the agency or minister. However, in relation to decisions by the Minister for Justice and Attorney-General to issue a s 36 exemption certificate on various matters (Cabinet matters, Executive Council matters, and law enforcement or public safety matters), the Commissioner is confined to determining whether reasonable grounds exist for issue of the certificate.
The Commissioner comments that 'the Qld Parliament intended that the Information Commissioner provide a speedier, cheaper, more informal and more user-friendly means of dispute resolution than the court system or tribunals such as the Commonwealth AAT or the Victorian AAT, which adopt court-like procedures'. The Commissioner 'tends to follow an inquisitorial model, in preference to an adversarial model, of adjudication'.
Chapter 2 of the report recounts the history of development of the office of Information Commissioner, noting that it has previously been unusual for an Ombudsman to exercise determinative powers upon a review. The Qld Parliament, decided to combine the Parliamentary Commissioner's ability to mediate and negotiate requests for review, while still ultimately having the power to issue a determination. This follows the approach taken in the Canadian national legislation and the provincial Ontario legislation (and subsequently in British Columbia's legislation), although it gives the Parliamentary Commissioner these powers under a different Office. In contrast, the NZ Ombudsman only has recommendatory powers in relation to FOI reviews (but the NZ Privacy Commissioner has determinative powers in relation to complaints concerning access to and correction of personal records).
The Qld approach followed a report by the Electoral and Administrative Review Committee (EARC) in 1990 which recommended the mixed
mediation-determination model of an Information Commissioner, but did not think the Parliamentary Commissioner should fulfil this role. The Commissioner comments that 'the EARC model of FOI dispute resolution has been embraced in the freedom of information statutes of Tasmania, WA and SA (although in the latter instance, the role given to the SA Ombudsman of making binding determinations in FOI disputes, is one of two avenues of external merits review, the other lying by way of appeal to the District Court of SA)'.
The report notes that, while journalists may be comfortable with pursuing appeals through the adversarial process of the Commonwealth or Victorian AATs, most citizens are not, and for them 'a cheap user-friendly system of review is a great boon'.
The Report also points out the fact that the Information Commissioner cannot disclose exempt matter to the applicant means that it is 'frequently difficult for an applicant to make a meaningful contribution to the issues for determination. The more meaningful exchanges are going to occur between the Information Commissioner and the decision-maker, both of whom have access to the information in dispute. This is the nub of why the Information Commissioner model of dispute resolution is more sensible, flexible and practical for resolving FOI disputes ...'
After reviewing performance indicators for this first reporting period, the Commissioner finishes on a confident note:
'The available evidence from the reporting period indicates to me that, at least in the particular context of FOI disputes, the Information Commissioner model of dispute resolution is the most efficient and effective system for achieving the goal of a proper resolution of disputes between government decision-makers and persons adversely affected by their decisions, at the least cost'.
The Commissioner places great emphasis on the importance of the publication of reasons for his formal determinations (allowed under s 89(4)), because of the educative role that they can play in guiding policy makers at primary levels in government agencies. The report contains case summaries of both formal decisions and other cases resolved informally, with sufficient details to allow understanding of the operation of the Act. None of the first group of cases summarised raised significant privacy issues, but do indicate that the Commissioner was interpreting the expression 'personal affairs' as having a more narrow meaning than 'information about an identifiable individual'.
In the context of the Administrative Review Council's review of the Commonwealth Freedom of Information Act 1982 (see (1994) 1 PLPR 100 and (1994) 1 PLPR 154), including the possible extension of access and correction rights to the private sector, and its relationship to the Privacy Act, the relevance of the Information Commissioner model is one of the potentially most significant privacy issues in Australia. The First Annual Report of the WA Information Commissioner will be reviewed in a coming issue.