Legislative Assembly for the ACT: 2011 Week 08 Hansard (Wednesday, 17 August 2011) . . Page.. 3451 ..
There was a time not very long ago in this place—it actually went until about a year ago—when it was a matter of course and convention that members of this place were not charged for FOI requests. Mr Corbell marched into a hearing of the Standing Committee on Justice and Community Safety on the Freedom of Information Act about a year ago—I cannot remember exactly when but it was some time in the last calendar year—and said there had never been such a convention and the word had gone out that members of this place were not exempt from fees under the Freedom of Information Act.
All members of this place who have used the Freedom of Information Act since then have been confronted time and again with requests for fees, which is essentially a delaying tactic. You get something that says, “We propose to charge you X hundred or X thousand dollars for access to these documents, unless you can demonstrate why these fees should be waived.” You then write a letter and they write back and say, “No, you have to demonstrate why that is in the public interest.” You then write back and they go, “Oh, very well.” Of course, that means that has delayed the release of documents for some two or three months beyond the time. But this has become standard practice with this open and accountable government.
Mr Smyth has had a couple of experiences but I think the big award needs to go to Mr Coe with his experiences. He has been pursuing particular departments for internal audit reports. He has asked the TAMS directorate for internal audit reports in relation to some of their services and made a similar request to DHCS, the Community Services Directorate as it now is. It is interesting to see the contrast in performance. TAMS has provided these documents but the Community Services Directorate refuses to provide the same class of documents. Mr Coe has made two separate requests to the Community Services Directorate for internal audit reports but that material has been exempted from release under section 40 of the Freedom of Information Act.
It is very interesting to look at what the minister says about these things because the minister justified this in question time, I understand, by saying, “Mr Coe couldn’t have these documents because they must be exempt under section 40.” This shows a fundamental lack of understanding by ministers in the government about how the Freedom of Information Act works. There are exemptions in the Freedom of Information Act and, generally speaking but not exclusively, those exemptions work like this: “Here is a document. Is it likely to fall under one of these exemptions?” If the answer is yes, you have to answer the question: “Would its release be contrary to the public interest?” It does not mean that because a document could be classified as something that could be exempt under section 40 it must be refused.
If something could be classified as exempt—and the minister should actually be listening and getting a few lessons about how her department is operating—under section 40 of the Freedom of information Act, you have to ask the question: “If I release this document, will the release of that document be contrary to the public interest?” And if you cannot answer yes to that then officials are obliged to release the document under the Freedom of Information Act.
The fact is that we have this constantly. It has been my experience with the department of education at various times. I have been told, “You can’t have that