Last year, the Government introduced comprehensive legislation to overhaul Freedom of Information laws in New South Wales, to make the Government more transparent and accountable, and to promote a stronger culture of openness.

I am pleased to inform you that the new Government Information (Public Access) Act 2009 will commence operation on 1 July 2010.

Central to the new Act is the presumption that all Government–held information should be accessible to the public and that information should only be withheld if it is necessary to do so in the public interest.

Further, the Act establishes a new model of openness under which formal applications for access to information should be a last resort for members of the public wishing to obtain Government information. Instead, the Act authorises and encourages the release of information proactively, limited only by legitimate public interest considerations.

The cultural shift that is necessary to realise the full promise of the new legislation will require leadership. Ministers and heads of agencies need to set the tone and cultural expectations which support the release of Government information. It is important that agency staff be given the confidence and support they need to make decisions that further the objects and intentions of the new Act.

There will, of course, continue to be certain types of information that it will be inappropriate to release. Information revealing Cabinet deliberations, sensitive personal or commercial-in-confidence information, and information that could jeopardise public safety, law enforcement or the fair trial of a person are examples. In all cases, however, public interest is the relevant touchstone. Political considerations must not come into play.

I know that, since the enactment of the legislation last year, agencies have been working hard to prepare for its commencement.

As you will be aware, an Office of the Information Commissioner has been established and the Government has announced that Deidre O’Donnell has been appointed as the state’s first Information Commissioner. The Information Commissioner is an independent champion of open government in New South Wales, reporting directly to Parliament and subject to oversight by a Joint Parliamentary Committee.

The Office of the Information Commissioner is currently providing information, support and advice to agencies about the new laws and will continue to do so. The Information Commissioner will also issue advisory guidelines for the assistance of agencies on the exercise of their functions under the Act. The Government may also from time to time impose mandatory policies either through regulations or by way of Premier’s Memoranda, such as M2009-18 (Agency responsibility for FOI determinations).

It would be appreciated if Ministers could ensure that all agencies within their portfolios are aware of the date of commencement of the new Act and that they are taking all necessary actions in preparation for the new regime.

Ministers should also ensure that CEOs within their portfolio are aware of their obligations under the new Act and that they have taken steps to ensure that relevant staff are receiving appropriate training.

Leading by example will be crucial, and Ministers are asked to emphasise the need for all agencies (including Ministers’ own offices) to comply both with the letter and spirit of the new Act.

Already, Ministers proactively release certain information on the Internet, including copies of all of their media releases (see M2008-18 (Availability of Ministers’ media release on NSW Government Agency Websites)) and details about their overseas travel (see M2009-10 (Release of Overseas Travel Information).

I encourage all Ministers and CEOs to consider what further information can be identified for proactive release by agencies within their portfolios. This will provide a clear demonstration of their personal commitment to the new approach.

Although the new system envisages that formal access applications will be a last resort, the Act retains the right of members of the public to apply for access to Government-held information that has not already been released proactively. Again, the right is limited only by public interest considerations.

Applications for access to Government information must be determined on their merits, based solely on the criteria in the Act and independent of political influences or considerations.

Ministers should also be aware that the new Act expressly provides that, in dealing with a particular access application, agencies are not subject to the direction and control of Ministers. In addition, all of the requirements of Premier’s Memorandum M2009-18 (Agency responsibility for FOI determinations) will continue to apply with respect to access applications under the new Act.

I seek the support of all Ministers and agencies in implementing these important reforms, and in providing clear and practical leadership toward achieving a culture of more open government.

Kristina Keneally MP
Premier