Paterson, Moira --- "Freedom of Information and Privacy in Australia: Government and Information Access in the Modern State" [2005] PrivLawPRpr 20; (2005) 11(7) Privacy Law and Policy Reporter 203

• Freedom Of Information And Privacy In Australia: Government And Information Access In The Modern State

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Freedom of Information and Privacy in Australia: Government and Information Access in the Modern State

Author: Moira Paterson, Monash University

Published by LexisNexis Butterworths, 2004

Reviewed by: Nigel Waters

Here is a substantial and welcome resource on Privacy and FOI in Australia, filling at least partially a gaping void – there is as yet no privacy law textbook and the last comprehensive work on FOI is now more than 20 years old and covers none of the actual experience of FOI[1] . This review is written from the perspective of a privacy practitioner, with some knowledge of and much interest in FOI. It will certainly be useful to all privacy practitioners working in or for the public sector. For administrative law academics and students and FOI practitioners, who together form its main market, it will be even more valuable.

The book is mostly descriptive material – explaining the relevant statutes and regulations, exploring differences between the different Australian jurisdictions, and illustrating the effect of the laws with extensive summaries of relevant case law – from administrative tribunals and courts. The related area of public records law is brought together in the analysis with privacy and FOI, and the book is current enough to describe the innovative Northern Territory Information Act which brings the three areas together in one law. It is also able to address the other recent innovation of purpose-specific health privacy and access laws, in the ACT, Victoria and NSW.

The relatively brief commentary sections of the book offer interesting insights into the reasons for and effect of the differences, demonstrating the author’s familiarity with the FOI laws in particular.

Victorian Privacy Commissioner Paul Chadwick, in launching the book on 15 June, said

“In particular, [the author] makes useful observations about the interactions of FoI and information privacy. ... As [the author] points out, in Victoria, at least, there is work to be done to make the interaction more coherent. ....The right to access and correction of one’s own information is basic, and at present it lives awkwardly in two statutes.”

The author explores the somewhat schizophrenic relationship between privacy and FOI, illustrating how privacy law can be a valuable instrument of accountability to partner FOI laws, whilst also sometimes proving a barrier to openness and transparency.

Given the focus of the book on access and accountability, the treatment of privacy law is understandably selective – emphasising the access and correction and transparency principles. The other privacy principles receive only brief descriptive attention, although the introductory and concluding chapters offer tantalising glimpses of a wider analysis which the author will hopefully pursue in future work.

In the opening and closing chapters, the author provides a timely summary of the way in which recent changes in the political and technological environments have both increased the potential for government surveillance and also hastened a retreat into secrecy. She also documents the failure of Australian FOI laws to live up to their promise, and to the experience in other jurisdictions, to significantly open up government decision making processes. The dominant use of Australian FOI laws by individuals to access records about themselves, whilst welcome in the context of privacy rights, is in stark contrast to the relatively low level of use by the media, businesses and non-government organisations to hold governments to account.

The detailed description in the book of the exemptions, processes, fees and charges, and of the way in which these have all been litigated, provides much of the explanation for this imbalance in use of FOI laws. The author also reviews the many reports and reviews which have criticised the weaknesses and inadequacies of the Australian FOI and privacy laws and their implementation – so far with few sympathetic responses from any of the relevant governments.

It is of course asking a lot of incumbent governments to open themselves up to greater scrutiny, or to subject themselves to effective privacy regulators. That is why the main hope for improvement lies in frustrated opposition parties committing themselves to reform in advance of elections, and then moving quickly enough to implement those reforms before the ‘Sir Humphrey Appleby’s in their bureaucracies can persuade them that they are not in their own interests.

The author contrasts the apparent success of the NZ Official Information Act – an indigenous solution to FOI with a much stronger presumption of information availability - with the perceived failures of the Australian FOI laws, based as they are on the US model but without the accompanying Bill of Rights, with a less highly developed separation of powers, and with a much more nuanced balance between a principle of openness of documents and a raft of detailed exemptions.

The concluding chapter summarises the depressing trend in recent years to weaken FOI laws both by amendment, by administrative practice and by political interference in FOI decision making. The author notes that greater use of commercial-in-confidence and cabinet-in-confidence exemptions, of conclusive ministerial certificates, and of fees and charges, together with cutbacks in resourced devoted to FOI administration and education have all contributed to this weakening. Ms Paterson suggests that in addition to the many useful recommendations of the 1995 Australian Law Reform Commission (ALRC) Open Government report – yet to be addressed by government, future reform also needs to take account of the changed governmental landscape in which there is no longer a clear separation of public and private sectors. Claims of transparency and accountability need to be applied to functions and activities rather than particular agencies or bodies.

In relation to Information Privacy Laws, the author concludes that it is probably a ‘second best’ locus for individual access rights. Access to personal information under FOI appears to work quite well and academic arguments for leaving it entirely to privacy laws should perhaps be resisted, especially given the general lack of resources for Privacy Commissioners to promote and enforce rights. Ms Paterson also notes the unfortunate lack of significant privacy jurisprudence, particularly at the Commonwealth level.

For the future of privacy law, she suggests an urgent need for greater uniformity and consistency between jurisdictions, for bringing Australian laws up to accepted international best practice standards (with a warning about the potential weakness of the current APEC approach) [see Greenleaf’s article elsewhere in this issue], and for changes to deal with new technologies and service delivery techniques.

In these respects, and in her criticism of the widespread exemptions in privacy laws, Ms Paterson is supported by the two recent reviews of the Commonwealth Privacy Act which she foreshadows but which have reported subsequent to the publication of her book [also summarised in this issue].

Apart from the contribution which the analysis makes to the privacy debate in Australia, the substantive descriptive chapters on access law and review rights and processes, supported by detailed summaries of the case law to date, form a very valuable resource. The author is to be congratulated on this landmark publication.

Nigel Waters is Principal of Pacific Privacy Consulting and Associate Editor of PLPR

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[1] Peter Bayne’s 1984 Freedom of Informatio, published as the first Australian FOI laws were taking effect. Anne Cossins’ 1997 Annotated Freedom of Information Act, New South Wales, is, as the title indicates, confined to the law of that State.