Bill Watch 40/2019 [The Freedom of Information Bill]
30 July 2019
High Court and set aside if it is procedurally flawed.
Evaluation of the Bill
Good points about the Bill
The provisions of the Bill are certainly better than those of AIPPA which the Bill
will replace, and will give members of the public greater access to information
held by public bodies:
More information will be accessible than is the case with AIPPA: for example
parliamentary papers and information in the National Archives are excluded
from the provisions of AIPPA but will be accessible under the Bill. The Bill
may indeed have gone too far in this regard, as we shall point out later.
Foreigners will be allowed access to information; this is currently denied them
by section 5(3) of AIPPA.
The time-limits within which public bodies must respond to requests for
information will be shorter under the Bill (30 days as opposed to 60 days
under AIPPA) and the Bill emphasises that responses should be given
earlier if reasonably possible.
It must also be said in the Bill’s favour that it will repeal AIPPA ‒ that is a
welcome step in itself ‒ but the repeal may be premature as we shall indicate
below.
Problems, limitations and drawbacks
While the Bill is a step in the right direction, it is only a limited step and some of
its provisions will need rewording and refining:
The Bill is concerned with access to information rather than with freedom of
expression so its title is a bit misleading: as suggested above it should be
called “the Access to Information Bill”.
It is not clear to what extent the Bill will permit access to information held by
private bodies, which may hold a great deal of information of legitimate
interest to the public. Part III of the Bill deals only with access to information
held by public bodies, not private ones, but clauses 22 and 24 set out
circumstances in which private entities can refuse to allow access to their
information.
There is no provision requiring public bodies to publish information pro-actively,
beyond a vague statement in clause 5 that public bodies must have written
“information disclosure policies”. Clause 19 says that the Bill will not prevent
or discourage public bodies from publishing information, but it does not
encourage or compel them to do so. The Bill should put public bodies under
an obligation to make information of general public interest automatically
available in the interest of transparent and accountable government.
The Bill imposes duties of disclosure on “holders of statutory office” but does
not define what that term means. It would certainly cover the RegistrarGeneral, for example, but it may not cover constitutional office-holders such
as the Commissioner-General of Police, the Commander of the Defence
Forces and the Auditor-General.