APPLYING THE LAW

Handling Appeals: Negotiation / Mediation

When developing appeal procedures, Information Commissions need to keep in mind the law's objective of promoting open government via maximum disclosure of information. In this context, it is important to recognise that the passage of the Central Act symbolises the Government's recognition that information disclosure is in the public interest - and is something that the Government therefore encourages and supports.

As such, Information Commissions need to promote a non-adversarial approach to handling appeals, which aims simply to provide as much disclosure as possible. The assumption that an adversarial approach will be the standard - where officials resist disclosure and the public demands it - needs to be quashed as early as possible. Instead, Information Commissions should develop procedures which promote openness as a positive, natural activity, rather than one which needs to be forced upon officials.

In practice, Information Commissions should consider incorporating mediation as a key element of the appeals process. Rather than adopting an adversarial approach, where both parties are arguing against each other, appeal bodies could talk to the parties to see if a compromise could be reached on disclosure. Consider whether there is some middle ground that can be reached. For example, even if an exemption CAN be applied, is it really necessary for the information to be withheld? If a large number of records are requested, is there any way the requester could tighten their search? Would partial disclosure of a record provide the applicant with the information they want while still protecting sensitive information?

Notably, mediation has been adopted by may Information Commissions throughout the world. Information Commission staff simply talk to the various parties and see if a compromise can be reached on disclosure. A more formal hearing need only be conducted where mediated agreement cannot be reached.