The introduction of Freedom of Information (FOI) legislation in Australia in the early 1980s was an important step in opening up government decisions to greater scrutiny. FOI legislation allows private citizens to make an application to public agencies to have certain information disclosed, subject to the information sought not falling into one of many exempted categories of documents.

However, the range of exemptions available in the legislation which can be utilised by public agencies to deny access to government documents, together with a growing culture of secrecy in both the Commonwealth and State public sectors, means that the original intent of the legislation is increasingly being subverted.

This was highlighted in the recent case of University of Melbourne v McKean [2008] VSC 325, where the University of Melbourne challenged the right of a university student, Zane McKean, to access marking guides for two finance subjects that McKean had undertaken while at University. The University attempted to rely upon a particular exemption in the Victorian FOI legislation to argue that the marking guides were internal working papers and, therefore, did not have to be disclosed. McKean won the matter in the Victorian Civil and Administrative Tribunal; however, the University appealed the decision to the Victorian Supreme Court. On 28 July, Justice Kyrou of the Supreme Court found that the Tribunal had decided correctly, and ruled that McKean should have access to the documents sought.

One wonders why the University went to such great lengths to suppress information which was the legitimate subject of an FOI query.

To the Australian government’s credit, the government has announced a wide-ranging review into the operation of FOI in Australia to determine how best to reform this area. While the review is taking place, Cabinet Secretary Senator John Faulkner announced that the government would soon be introducing interim legislation which abolishes the use of conclusive certificates in the Commonwealth arena. The use of conclusive certificates has proven to be one of the most damaging aspects of the legislation, because once a conclusive certificate is issued in relation to a particular application, the applicant loses the ability to have a decision not to grant access reviewed by a tribunal or court.

The Australian Government hopes to have a draft of the legislation ready for consultation later this year. It is important that we remain vigilant during the review process to ensure that Australia’s FOI regime fulfils its original objectives.

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