Information Disclosure Policy: A Toolkit for Pacific Governments (July 2006)
### EXPLANATORY NOTES Presumption of disclosure Maximum disclosure The principle of maximum disclosure is discussed in detail previously. Officials may withhold information The key principle underlying any exemption is that its purpose must be to genuinely protect and promote the public interest. All exemptions therefore need to be concerned with whether disclosure would actually cause or be likely to cause harm. International experience supports the view that blanket exemptions should not be permitted simply because a document is of a certain type - for example, a Cabinet document, or a document belonging to an intelligence agency. The key issue needs to be whether disclosure of the information would be likely to do serious damage to a legitimate interest which deserves to be protected. The Policy needs to avoid including mandatory grounds for withholding information (except for those already provided for in pre-existing statutes). In accordance with international best practice, every test for an exemption (articulated by the international NGO, Article 19) should be considered in 3 parts: (i) Is the information covered by a legitimate exemption? (ii) Will disclosure cause substantial harm? (iii) Is the likely harm greater than the public interest in disclosure? Key questions: Are the exemptions listed in the Model IDP appropriate for the national context, or will they require further elaboration to ensure that officials apply them properly and do not interpret them too broadly? Public interest The Model IDP makes all of the exemptions subject to blanket "public interest override", whereby a document which falls within the terms of a general exemption provision will still be disclosed if the public interest in the specific case requires it. This ensures that every case is considered on its individual merits and public officials do not just assume that certain documents will always be exempt. A number of public interest grounds is listed in the Model IDP to assist officials with weighing up the competing interests. The idea of this provision is to ensure that the "public interest" is always the focus of any decision about disclosure. For example, while information about police deployment might need to be withheld during a period of unrest, after the unrest is over, that same information may well need to be released in the public interest, to enable the public to assess whether the situation was dealt with properly. Key questions: Are there any other grounds that could be added to the list of issues to help officials understand when disclosure will be in the public interest? Review existing secrecy legislation Governments may need to review existing legislation to make sure that the laws and rules which regulate the conduct of government bodies do not conflict with the new Policy. For example, if there is an Official Secrets Act in place, officials32 may be concerned that they will be prosecuted under the Act if they release information to the public, notwithstanding the fact that the policy says they should be more open. If secrecy provisions are left on the law books, officials may be confused about their obligations. Ideally, conflicting legislation will be amended or repealed. In fact, consideration may be given to developing a freedom of information law to provide certainty to officials. If enacting a comprehensive law or even passing amendment Bills through parliament will be difficult or time-consuming however, governments may wish to issue administrative circulars clarifying how existing laws and regulations will be interpreted applied in light of the new information disclosure policy. For example, the government may wish to clarify what acts of disclosure the Official Secrets Act will no longer be used to punish. To help ensure Ministers and Parliament are kept informed of progress on this issue the IDP Implementation Unit can produce a report for publication by Ministers within 18 months of this policy being adopted. Key questions: What legislation, regulations and/or administrative orders are currently in place which promotes information disclosure? Is there any constitutional guarantee for the right to information? Are there any relevant treaty obligations dealing with the right to information? Has the country signed up to treaties that may require legislation to enforce openness - such as environmental treaties? What legislation, regulations and/or administrative orders are currently in place which restrict information disclosure? Is there an Official Secrets Act in place? If so, is it a living law, or has it fallen into disuse? Are there any legislative reform programmes in place currently? Could these be developed/ redesigned to include a review of all secrecy and openness legislation? Is the Attorney-General's Office and/or Law Ministry equipped (in terms of personnel, expertise and resources) to undertake a review of secrecy legislation? Has any work been done to develop a freedom of information law? Has the government developed draft legislation? Has civil society developed a model FOI law? Was any draft law developed participatorily, in that the public and civil society were engaged in the legislative development process? Is there a realistic timetable for tabling, enacting and implementing FOI legislation? If there is no law in draft, are there government statements recognizing the need for legislation or specific commitments to passing relevant laws? Privacy issues In an age where governments and private bodies are collecting and holding increasing amounts of information about members of the public, it is essential that proper policies are in place to ensure that personal information is appropriately protected from disclosure and cannot be misused by officials. Privacy issues are complex - particularly now that considerable information is held in electronic databases and shared between the private and public sectors, between levels of government, and between countries. Specific attention and expert resources need to be dedicated towards developing appropriate national privacy regimes. Key questions: Is there any constitutional right to privacy? Is there a national Privacy Policy or Act in place? If not, have any sectoral policy documents or issues papers been produced or commissioned? What safeguards are in place currently to ensure that personal information held by government and private bodies is not incorrectly released or misused? Are there any legislative reform programmes in place currently which could be developed/ redesigned to include an examination of privacy issues? Is the Attorney-General's Office/ Law Ministry/Law Reform Commission equipped (in terms of personnel, expertise and resources) to undertake such an exercise? 32Model legislation is available to make this process simpler (eg. the Commonwealth Secretariat and the NGO Article 19 have produced Model FOI Laws), and organisations such as the Commonwealth Human Rights Initiative and Article 19 are available to provide (usually free) assistance to governments wishing to develop open government legislation.
Commissioned by the Pacific Media and Communications Facility, an Australian Government, AusAID initiative managed by MDI International in association with MC Media & Associates