The right to information
A response to the review of Queensland’s Freedom of Information Act
The right to information – A response to the review of Queensland‘s Freedom of Information Act
? The State of Queensland (Department of the Premier and Cabinet) 2008.
Published by the Queensland Government, August 2008, 100 George Street, Brisbane Qld 4000
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Foreword by the Premier
Openness and accountability are the cornerstones of good government.
That‘s why one of my first acts as Premier was to commission Dr David Solomon to review Queensland‘s Freedom of Information laws and report on changes to give the community greater access to information.
Dr Solomon undertook a comprehensive review involving extensive consultation, and delivered his report to the Queensland Government on 10 June, 2008.
At the heart of The Right to Information report is the belief that governments should readily make information available to the community.
The Queensland Government agrees.
We recognise the importance of cultural change, as well as structural change. That means that, as we overhaul our approach to information, the over-riding principle will be that the community has a right to information held by the government.
As indicated in this response, the Queensland Government supports in full 116 of the report‘s recommendations, and either partially or in principle supports another 23 recommendations. Only two recommendations are not supported (see recommendations 45 and 70).
When these reforms take effect, Queensland will be the most open and accountable government in Australia.
The Right to Information report and the Queensland Government response provide a firm foundation for our State to take the lead on open and accountable government.
ANNA BLIGH MP
PREMIER OF QUEENSLAND
Introduction – the imperative for change
The Freedom of Information Act 1992 (FOI Act) was a key accountability reform introduced in Queensland in the post-Fitzgerald Inquiry period, creating a legislative right of access to government information. The ability to access government information through the FOI Act, coupled with increased distribution of information through the internet and other forms of publication, means that there is now significantly more government information available to the community than there was prior to 1992.
Since the enactment of the FOI Act, however, there have been significant changes in the way government deals with information and the means by which documents are created and published. The FOI Act was passed in a different era, when information was primarily recorded on paper and stored in physical files. Technological advances have meant that the logistics and costs of storing and reproducing information have improved significantly and there has been a consequent massive increase in the volume of information held by government.
There also continues to be many unnecessary hurdles put in the path of information disclosure and there is considerable scope to improve access to government documents and reduce the time, cost and effort involved in accessing government documents.
It was for these reasons that the Queensland Government commissioned an independent and comprehensive review of Queensland‘s freedom of information legislation in September 2007, chaired by Dr David Solomon AM.
The report by the FOI Independent Review Panel, The Right to Information, proposes a complete rethink of the framework for access to information in Queensland. At the core of the report is a clear recommendation that government implement real enhancements to openness and accountability through a comprehensively developed change statement on information policy.
The Queensland Government agrees with the panel‘s conclusion that there is a need for government to renew its commitment to freedom of information through a new policy and legislative approach to freedom of information. The government also shares the independent panel‘s view that freedom of information legislation cannot, of itself, deliver real enhancements to information policy.
Following from this, the government response to the independent review panel‘s report, The Right to Information, is
centred on a key recommendation put forward by the panel: that a comprehensive whole-of-government strategic information policy is essential if we are to achieve the best possible outcomes for an open, accountable and participatory government, where recourse to legislative rights becomes a matter of last resort in the context of increased proactively released government information.
The panel makes the important point that government information is a core strategic asset. Open government will deliver more than just the important goal of increased public sector accountability and transparency. A better informed community means that users of government services will be better placed to participate in the design and delivery of those services. Hence, increased openness is also a means by which the value of the information held by government can be unlocked to deliver better public services.
Information policy and legislation reform is an integral part of the government‘s program of modernisation for the
Queensland public service. It will be supported by an organisational and cultural change strategy to foster a public service culture that operates on the premise that increased openness is as much in the interests of a continuously improving public sector as it is in the interests of those to whom government
A whole-of-government strategic information policy framework
The Queensland Government will develop a whole-of-government information policy framework that will set the long term goals and strategic direction for government information policy, while at the same time mapping the immediate priorities for government in seeking to position itself as an innovative and accountable custodian of government information.
Government agencies already vest considerable time and resources in providing information to the community. Some examples of the type of information currently being provided to the
• Queensland Health provides the public with a large amount of online information on health related issues in Queensland,
ranging from Indigenous health trends, cancer incidence and mortality rates, to the location of hospital emergency centres.
The community also has online access to public hospital performance reports, staffing profiles, hospital activity and capacity reports and patient satisfaction surveys, to guide their health care decisions. Online information, provided through the Health Statistics Centre which monitors population health status and health service activities, also enables the community to see the background information that is used to guide health service improvements.
• The Department of Infrastructure and Planning is currently running a trial of the Smart eDA (electronic Development
Applications) Program. This program will transform the paper-based Integrated Development Application Scheme (IDAS) process into an electronic process focused on making preparation of development applications easier and faster by assisting applicants to access council and state agency information relating to their proposed development.
Applicants will also be able to verify which councils and/or state agencies will be involved in the application assessment and lodge their application and pay any associated development assessment fees.
• The Department of Communities recently commenced publishing a quarterly report on progress and future action for the discrete Indigenous communities based on key indicators, such as reported offences against the person, hospital admissions for assault, court appearances for breaches of alcohol restrictions and school attendance.
• The Department of Natural Resources and Water hosts the Information Queensland Program, a further mechanism for making whole-of-government information available in useful form. Services to date include:
• an interactive map, or atlas, displaying government information and services on a map of the state;
• a government metadata catalogue to enable both agencies and the public to find information in a quicker and easier way;
• data storage at CITEC for agencies to place information online and make it available to both other agencies and the public electronically.
• The Department of Mines and Energy makes a wide variety of information concerning its activities available to the public
through its internet site. The Queensland Digital Exploration Reports System (QDEX) provides online access to exploration reports and data produced by the department. The Interactive Resource and Tenure Maps (IRTM) allow users to search online and display geological data with mining and exploration tenure information for the whole of Queensland.
However, the government can take further steps to improve access to information held by government.
As a first step, and consistent with the recommendations contained in the panel‘s report, the government will develop a whole-of-government strategic information policy framework with the following elements:
• A move to a ‘push’ model: It is fundamental to an open and participatory government that information is provided as a matter of course, unless there are good reasons for not doing so. The policy framework will be based on guiding information policy principles, strategies and standards that position legislative access as the act of ‗last resort‘ in
accessing government information.
These information policy principles, strategies
and standards will embed a right to information in the administrative practices and organisational culture of the public service, so that providing information to Queenslanders is recognised as a legitimate and core aspect of every public servant‘s day-to-day work.
• A clearly articulated governance framework: The Queensland Government agrees with the panel‘s recommendation
that an integrated and coherent government-wide approach to the challenge of information management is required to provide direction and coordination among those with public administration and information management responsibilities. A critical component of the whole-of-government strategic information policy will be a governance framework, with clearly
articulated roles and responsibilities for all relevant agencies, including the Public Service Commission, the Information Commissioner, Queensland State Archives and the Queensland Government Chief Information Office.
• A comprehensive and integrated information policy: The policy will govern all aspects of the information life cycle,
including planning, creating, collecting, organising, using, disseminating, storing and destroying information. A review of all relevant standards and guidelines will commence immediately, with a view to creating an integrated and well-understood framework for the management of information throughout its life cycle.
• A clear authorising environment: The Queensland Government recognises that if real cultural change is to be
achieved, and if openness is to become part of the culture of government, it must be championed within government itself. Strong leadership and clearly defined decision-making processes will be essential to creating an appropriate authorising environment to allow this to occur.
• Appropriate protection for individuals’ privacy: The Queensland Government holds significant amounts of personal
information, and it will be critical to ensure that appropriate administrative and legislative safeguards are in place to promote privacy rights and to improve procedures for providing access by people to their personal information.
• Public interest restrictions on the release of information: There are instances where the disclosure of information
could have a prejudicial effect on essential public interests. Examples include matters such as national security, law enforcement, commercial confidentiality or the full and frank communications needed to allow the government to govern effectively. Where appropriate, the legislation will provide for restrictions on access to these types of information. It will be
equally important that decision-making processes for the administrative release of information are sufficiently robust to ensure that information that would otherwise be restricted for public interest reasons is not inadvertently released.
• Equal access to information: The policy will also aim to maximise equality of access to information across all sections of the community. Advice on how to apply for information and complaints procedures must be targeted in a way that ensures that it reaches all sections of the community. Administrative release of information should also occur in a way that meets the needs of those who are at a social disadvantage or who cannot, because of their location or personal circumstances, readily access information through electronic means.
• Comprehensive planning and management of resourcing and operational implications: There will, as a matter of
course, be significant resource implications for the government arising from the change to a push regime. Implementation of the whole-of-government strategic information policy will require careful planning, having regard to what can be achieved with current technology, and what the government can responsibly afford without unduly compromising other service delivery priorities.
Clearly, there is a significant program of work that will need to occur over the coming twelve months in support of a strategic information policy framework, including determining the baseline from which the policy can realistically be implemented and the development of standards and guidelines to provide the framework for the management of information.
A new legislative architecture
The Queensland Government will implement a new legislative framework for access to information, as recommended by the panel, and agrees that the recommended title, Right to Information Act, will make the primary purpose of the new legislation clear.
A key recommendation put forward by the panel is that access to personal information should be through a new privacy regime and that access and amendment rights for personal information should be moved from right to information legislation to privacy legislation. The Government considers that there are clear benefits in enacting privacy legislation and will introduce a Privacy Bill in parallel with the new Right to Information Bill.
Consistent with the panel‘s recommendations, the Right to Information Bill will clearly state that its object is to provide a right of access to information held by the Government unless, on balance, it is contrary to the public interest to provide that information.
The new legislative architecture for the Right to Information Bill recommended by the independent panel includes core recommendations that the Queensland Government supports. These are:
• A reduced number of ‗true‘ exemptions, including a redrafted Cabinet exemption. As noted by the independent panel,
these exemptions are matters where it has been determined, legislatively, that the public interest in applying that particular exemption is so high that no other public interest consideration should be permitted to tip the balance in favour
of disclosure; and
• A reframing of the ‗public interest test‘ to provide in legislation:
• a list of factors that might arise for consideration in the process of deciding whether the disclosure would, on balance, be contrary to the public interest; and
• a time and harm weighting guide, with a list of harms that are to be given higher weight in assessing the public interest.
The Cabinet exemption
The Queensland Government agrees with the panel‘s recommendation that the Right to Information Bill include an
exemption for Cabinet documents which, if disclosed, would reveal a consideration or deliberation of Cabinet, or otherwise prejudice Cabinet confidentiality.
The panel‘s recommendation that the Cabinet exemption have a purposive element will be reflected in the proposed Right
to Information Bill by redrafting the exemption. It will provide that Cabinet material will be exempt where the material was created for the purpose of consideration or deliberation by Cabinet.
The exemption for Cabinet documents will include submissions, decisions, briefing notes and all other material that would, if made public, compromise the collective ministerial responsibility of Cabinet.
The exemption will apply for a period of ten years, after which release will be subject to the other provisions of the proposed Right to Information Bill, including the application of the time and harm weighting guide and the public interest test.
The government also considers that there is a compelling public interest in protecting the confidentiality of material prepared in the course of budget deliberations, particularly in terms of options for budget revenue and expenditure measures, and will also include this material in the Cabinet exemption.
In addition, the government proposes to amend the Public Records Act 2002 to reduce the restricted access period for Cabinet documents from 30 years to 20 years.
The reduced time period for administrative release of Cabinet documents will mean that Queensland will have the most open access scheme for Cabinet documents in comparison with other Australian jurisdictions.
In keeping with the government‘s commitment to open and participatory government, the Premier and the Cabinet Secretary will regularly determine what information should be released proactively, including summary minutes of the Cabinet meeting and submission/decision summaries, and the time frames for such release.
Application to government commercial entities and activities
The panel also recommended the removal of specific exclusions relating to ―Government Business Enterprises‖ (primarily Government Owned Corporations – GOCs and Local Government Owned Corporations - LGOCs).
The Queensland Government agrees with the panel‘s view that, given that GOCs are emanations of government and that
ministers are ultimately accountable for GOCs‘ activities, GOCs should not be completely exempt from the application of the proposed Right to Information Bill.
At the same time, however, any decision to remove current exclusions needs to recognise that GOCs are subject to rigorous private sector regulatory requirements and that complying with the legislation could, in some instances, affect their ability to compete against private sector providers who are not covered by the legislation. The government considers that there needs to be a balance between the legitimate public interests of protecting the commercial interests of GOCs and in ensuring transparency of the operations of GOCs.
To achieve this balance, the Right to Information Bill will provide that GOCs will be subject to the Right to Information Bill,
unless the government considers that capturing a GOC within the scope of the Right to Information Bill would jeopardise the competitive interests of the GOC. In addition, the community service obligations (CSOs) activities of GOCs will be subject to the proposed Right to Information Bill.
On this basis, the GOCs that will be captured by the Right to Information Bill will include:
• port authorities (Port of Brisbane Corporation, Ports Corporation of Queensland, Gladstone Ports Corporation, Mackay Ports, Port of Townsville and Cairns Ports);
• Queensland Rail‘s passenger services and rail network; and
• Queensland Electricity Transmission Corporation (Powerlink).
However, the Right to Information Bill will exclude GOCs whose competitive interests could be jeopardised if they were captured by the legislation. This is consistent with the approach in other states and territories, where government business enterprises who operate in competitive environments, such as the national electricity market, are exempt from FOI.
GOCs which will be specifically exempt from the legislation are:
• electricity generation companies (CS Energy, Tarong Energy and Stanwell Corporation);
• the trading activities of Ergon Energy Queensland;
• Queensland Investment Corporation; and
• Queensland Rail‘s competitive commercial activities, such as coal, bulk and general freight services.
The government will also increase access to information about GOCs by providing that the exclusion will apply to a GOC‘s competitive activities, rather than to documents received or brought into existence by a GOC for those activities. Currently sections 11A and 11B of the Freedom of Information Act 1992 operate as documents-based exclusions, which means that FOI immunity follows these documents regardless of whether they are held by the GOC or by a government agency. By contrast, documents created by or concerning private corporations, which are in the possession or control of an agency, are currently subject to the FOI Act.
The current documents-based exclusion for GOCs will be repealed, and the Right to Information Bill will include an exclusion for the activities of the limited number of GOCs listed above. This means that documents created by or concerning a GOC may be accessed if they are in the possession or control of an agency and are assessed as suitable for release under the public interest test in the proposed Right to Information Bill.
These legislative changes will be supplemented by increased publication of information relating to GOCs as part of the government‘s move to a ‗push‘ model of information sharing, which will be coordinated through the Office of Government Owned Corporations in Queensland Treasury.
The existing exemption for the Queensland Treasury Corporation (QTC) in respect of its borrowing, liability and asset managed related functions will also continue. QTC performs these functions in highly competitive commercial domestic and international markets in which the participants expect that confidentiality of information will be maintained. Removal of this exemption could put QTC at a disadvantage in comparison with other states and the Commonwealth, as the only jurisdiction without such an exemption.
The government also believes there is a compelling public interest in retaining the current exemption for matter relating to investment incentive schemes, as disclosure of information relating to contracts entered into under the Queensland Investment Incentive Scheme (QIIS) could significantly undermine the state‘s ability to compete against other states for contestable projects. As a consequence the state could suffer economic losses from reduced levels of capital investment and job creation. The exemption in section 47A will therefore be retained. However, the exemption will lapse 12 months after the conclusion of a QIIS contract (but not apply for a period longer than eight years after the grant offer is accepted in any event).
Application to non-government entities
The public has a genuine interest in and the Queensland Government is strongly committed to the accountability and transparency of the thousands of bodies established or funded by the government, or which are contracted to carry out functions on behalf of government.
However, there are good public interest reasons for not capturing these entities within the scope of the proposed Right to Information Bill, for example where the proportion of funding received from the government is low, where the costs of compliance could significantly compromise service delivery (particularly in the case of smaller entities) or where compliance with the Act would place an undue impost on the non-government organisation.
The government agrees with the principle that it is in the public interest for information to be made available to the public for organisations that are funded by government or contracted to provide services on behalf of government. However, non-government organisations that receive funding or support from the Queensland Government already provide large volumes of information to government, which may then be accessed through FOI.
The government considers that the ‗public interest‘ information sought from these bodies is already available from relevant
agencies through existing accountability and reporting obligations or, if the information is not readily accessible, could be made available through improved reporting and information publication arrangements.
To ensure that appropriate information is being provided to the government by non-government organisations, Directors-General of all departments will be required to:
• evaluate reporting and accountability arrangements for non-government organisations, and report to the Premier on the
information that government collects from these organisations by the end of 2008; and
• identify information provided by funded or contracted organisations that is suitable for proactive release through departmental publication schemes.
The Public Accounts Committee (PAC) is also currently conducting an inquiry into whether the frameworks and systems used by government in delivering and reporting funding to and from non-government organisations are providing sufficient information to stakeholders to make informed decisions. The outcomes of the PAC inquiry, together with the information obtained through departmental reviews, will be used by government to develop a whole-of-government reporting and information publication framework for non-government organisations.
The government also agrees with the independent panel‘s recommendation that private sector bodies with public functions such as regulatory functions (for example the Bar Association of Queensland), should be subject to the legislation in relation to their performance of those functions.
Fees and charges
The panel recommended a new charging regime for applications, based on the number of pages provided, rather than an estimate of the time taken to conduct searches and process the application.
The Queensland Government supports the intention of the recommendation to implement a more structured approach to charges for access to documents. However, preliminary modelling has indicated that the model proposed, if adopted in its entirety, could lead to increased costs in many instances.
The government will consider options for an appropriate charging regime as part of the drafting process for the proposed Right to Information Bill, to ensure that any changes do not inadvertently result in increased costs for applicants when compared with the current charging regime.
Time limits for the process
As the panel has stated, in some cases ―access delayed is access denied‖. This can be particularly true when applicants
are not satisfied and seek the review of decisions.
The report recommends a reduction in the maximum period for processing applications to 25 working days, and that a detailed Schedule of Relevant Documents be provided to applicants within 10 working days.
The proposed Right to Information Bill will provide that decisions should be made as soon as practically possible but no later than 25 working days.
Consistent with the process outlined at Appendix 6 of the report, an additional 10 working days will apply where third party consultation is required.
However, there could be significant operational difficulties with preparing a detailed schedule of documents within 10 days, in view of the following considerations:
• documents are often held in regional offices or by field officers with limited availability, which can significantly increase
the time frames required for locating documents;
• preparation of detailed schedules would be extremely time-consuming and resource-intensive and difficult to complete
within 10 days, particularly as the scope of applications frequently extends to thousands of documents; and
• there is a risk that exempt matter could inadvertently be disclosed to applicants through inclusion in a schedule if
sufficient time is not allowed for preparation of the schedule.
In view of the practical considerations involved with these recommendations, the government will examine options for the preparation of a schedule that will not adversely impact on the recommended overall time frames for responding to applications.
Implementing the recommendations of the panel will require a fundamental reconsideration of the governance roles for information management within the Queensland Government. These roles and relationships will be addressed as part of the development of the whole-of-government strategic information policy.
A Chief Executive Officer Steering Committee, chaired by the Director-General of the Department of the Premier and Cabinet, has been established to oversee development of the policy over the coming 12 months. Membership of the CEO Steering Committee includes the Under-Treasurer, the Director-General of the Department of Public Works, the Public Service Commission Chief Executive and the Director-General of the Department of Justice and Attorney-General.
The CEO Committee will review current roles and responsibilities of key agencies in light of the Right to Information report recommendations, with a view to implementing governance arrangements that will give best effect to the whole-of-government strategic information policy.
The entities with key roles are likely to be:
• Information Commissioner (IC) – this important role is discussed below;
• Queensland State Archives (QSA) – the QSA has responsibility for records management and archives and related
• Queensland Government Chief Information Office (QGCIO) – the QGCIO has responsibility for developing whole-of-
government information management and information and communication technology business strategies and directions, including the Information Standards.
• Public Service Commission (PSC) – the PSC will drive change to embed a right to information in the administrative practices and organisational culture of the public service; and
• Office of Economic and Statistical Research (OESR) – the OESR maintains the government‘s principal statistical data
sets through the Data Hub and the Register of Strategic Information.
Role of the Information Commissioner
The Information Commissioner will be both champion and monitor of the right to access information, and will support both agencies and applicants to proactively provide and seek information. This will occur in many ways, from the provision of guidelines and a telephone help-line, through to public assessment of agency performance in dealing with applications under the proposed Right to Information Bill.
External reviews and applications to have a person declared vexatious will continue to be heard by the Information Commissioner. Appeals on questions of law and declarations that a person is a vexatious applicant will be heard by the new Queensland Civil and Administrative Tribunal, proposed to be operational from late 2009.
As previously indicated, the Queensland Government will develop a new Right to Information Bill and a Privacy Bill, for release as consultation drafts by December 2008. Following input from the consultation process, it is proposed that the Bills be introduced into Parliament in the first half of 2009, with a view to commencement of the new legislation by mid-
In parallel with development of new legislation, the Queensland Government will also develop a whole-of-government strategic information policy framework. It is proposed that an options paper on the key elements of the strategic information policy be released for consultation in early 2009.
A comprehensive and integrated whole-of-government strategic information policy with a ‗right to information‘ access
perspective will take time to develop and implement. In the interim, it is important that the change momentum be continued through administrative measures that position legislative access as an avenue of last resort in accessing government information.
To achieve this, the government will act to implement administrative measures with immediate effect, including:
• The Premier and the Director-General of the Department of the Premier and Cabinet will write to all Ministers and Directors-General, respectively, encouraging them to increase the visibility of their agency‘s information holdings and requesting that they give immediate priority to increased disclosure of government information to the public.
• The Queensland Government agrees with the independent panel‘s view that a central e-RTI model should be developed
where members of the community can lodge an application, make an electronic payment and validate electronic signatures. A project team, led by the Department of Public Works (Queensland Government Chief Information Office) will develop a model and implement a central e-RTI facility for the Queensland Government.
• The Queensland Government will commence regular proactive release of Cabinet information (including summary minutes of the Cabinet meeting).
The Independent Panel‘s Report has set some significant challenges for government. Implementing the recommendations in The Right to Information Report will require fundamental changes to government administration and organisational culture. It will also require clear leadership and commitment, and significant investment of time and resources.
The Queensland Government recognises that we are not going to achieve the administrative and cultural change that is required to do this overnight. Nonetheless, the government has expressed its commitment to a new information policy paradigm and new legislation through the Right to Information Bill and a new Privacy Bill.
This response is the first step down that path, and the beginning of a new era of openness, transparency and accountability for the Queensland Government.
Response to specific recommendations
This table provides a line-by-line response to the specific recommendations made by the independent panel.
The right to information report: Queensland Government response
No. RECOMMENDATION RESPONSE
1 As a priority, the Queensland Government Supported
(p.34) should develop a whole-of-government The Queensland Government will develop a
strategic information policy that posits comprehensive whole-of-government
government information as a core strategic information policy framework that will set the
asset in the Smart State vision, addressing long term goals and strategic direction for
the lifecycle of government information and government information policy, while at the
interconnecting strategically with other same time mapping the government‘s
relevant public policies. Freedom of immediate priorities for information
information, privacy, public records, ICT management.
governance and systems would constitute In recognition of the critical importance of the
some of the elements of this overarching policy in driving change across the sector, a
information policy, and would benefit from CEO Steering Committee, chaired by the
No. RECOMMENDATION RESPONSE
policy consistencies and cross-leveraging Director-General of the Department of the results. Premier and Cabinet, has been established
to oversee development of the policy.
Membership of the CEO Steering Committee
includes the Under-Treasurer, the Director-
General of Public Works, the Public Service
Commission Chief Executive and the
Director-General of the Department of
Justice and Attorney-General.
The government considers that it will be
essential to review current roles and
responsibilities of the Information
Commissioner, Queensland Government
Chief Information Officer and State Archivist
in light of the report‘s recommendations, and
in articulating the governance arrangements
that will give effect to the whole-of-
government strategic information policy.
In addition, the Public Service Commission
will play a key role in promoting the
organisational and cultural change required
to drive implementation of the policy.
2 Pending completion of the whole-of-Supported
(p.34) government strategic information policy The government agrees that, while a (Rec. 1) the Queensland Government comprehensive and integrated whole-of-
should in the interim recast FOI‘s place in government strategic information policy with the government information experience as a ‗push‘ focus will take time to develop, it is the Act of last resort moving the existing important that the change momentum be
‗pull‘ model to a ‗push‘ model where continued through immediate administrative government routinely and proactively measures that position FOI as a measure of releases government information without last resort in accessing government the need to make an FOI request. information.
In support of this recommendation, the
Premier and the Director-General of the
Department of the Premier and Cabinet will
write to all ministers and directors-general,
respectively, encouraging them to increase
the visibility of their agency‘s information
holdings and requesting that they give
immediate priority to increased disclosure of
government information to the public.