Agency Resource 14: Freedom of information

Access to government information – administrative access schemes

September 2012

This agency resource explains what administrative access is, why it may be beneficial for agencies to release information outside the formal FOI process and how agencies can set up an administrative access scheme.

The resource aims to promote open government by encouraging new channels for information release and greater flexibility in managing access requests. This reflects the intentions of the Declaration of Open Government and the movement in government towards a pro-disclosure culture. Administrative access to government information provides an essential channel for fast and flexible information release and advances two of the Principles on open public sector information: Principle 1 states that open access to information should be the default position, and Principle 2 states that agencies should engage with the community and respond promptly to requests for information.

What is administrative access?

Administrative access means release of government information, in response to a specific request, outside the formal process set out in the Freedom of Information Act 1982 (FOI Act).

Administrative access may involve:

• providing information or documents when requested by a member of the public
• a specified access arrangement for information or documents the agency is commonly asked for
• collation and release of data or statistics following a specific request
• online portals which allow clients to access and update their personal information held by the agency
• a formal access arrangement for staff seeking their own personnel records.

This agency resource is aimed at helping agencies set up an administrative access scheme that can operate alongside the FOI Act to provide public access to information and documents upon request. An administrative access scheme can deal more simply and efficiently with requests that could also be made under the FOI Act.

The FOI Act, supplemented by an administrative access scheme, would not be the only avenues for obtaining information from an agency. Other formal and informal arrangements are adopted by agencies to answer media enquiries, assist students and researchers, communicate with clients and stakeholders, and provide specialist information services to industry and the community. These arrangements are not included in the discussion below.

An agency's adoption of an administrative access scheme is not intended to discourage or constrain informal information release or compel the agency to implement more structured administrative arrangements when informal approaches or established channels are operating effectively.

Why establish an administrative access scheme?

Establishing an administrative access scheme offers benefits to agencies and members of the public seeking information and documents. Some advantages of an administrative access scheme include:

• it advances the objects of the FOI Act and is a natural manifestation of ‘open government'
• it encourages flexibility and engagement with the public
• it takes advantage of advances in technology that facilitate fast and easy collation, integration and distribution of information
• it can offer a lead-in to the FOI process, allowing the public to engage with agencies and refine the scope of the documents they are after before pursuing a formal FOI request
• it reflects the broader movement in public administration towards greater emphasis on dialogue and negotiation between agencies and the public rather than automatic deferral to formal legal processes (such as the FOI request process)
• it potentially offers cost benefits and quicker processing times (for example, less time spent on formal FOI notice requirements; and information requests handled by the customer liaison section of the agency rather than a specialist FOI unit).

Is establishing an administrative access scheme permitted by the FOI Act?

Release of information outside the FOI Act

The FOI Act is not intended to restrict the circumstances in which government information can be released. Section 3A(2) states that it is not the intention of the Parliament in enacting the FOI Act to limit the power of agencies to publish information or give access to documents, or to prevent or discourage agencies from doing so. An agency may disclose information without a formal FOI request, including information which would be exempt under the Act.

Administrative access schemes and personnel records

The FOI Act enables agencies to direct staff to access their personnel records through administrative arrangements before seeking documents through the FOI Act. Section 15A states that a current or former employee must use a procedure established by the agency to access personnel records. A person who is not satisfied with the outcome or who is not notified of the outcome within 30 days may then make an FOI access request (s 15A(2)).

Administrative access schemes and the Information Publication Scheme

Section 8 of the FOI Act requires agencies to proactively publish certain types of information under the Information Publication Scheme (IPS). Section 8(2) sets out the categories of information that agencies must publish, including information in documents to which the agency routinely gives access in response to FOI access requests (s 8(2)(g)). This does not include information routinely released under an administrative access scheme. However, it is open to agencies to proactively publish this type of information, where appropriate, under s 8(4) which allows agencies to publish other types of information under the IPS.

What is the difference between FOI access requests and administrative access schemes?

Differences between access under the FOI Act and administrative access schemes

Freedom of information access request	Administrative access scheme
A request made under the FOI Act must meet certain requirements (for example, it must be in writing).	A request made outside the FOI Act does not have to meet any specific requirements, though an agency may choose to establish a particular process that involves (for example) the applicant filling out a request form or entering an online portal.
A request must be acknowledged within 14 days and a decision made in 30 days.	The Information Commissioner recommends that requests handled under an administrative access scheme be processed within 30 days. If this cannot be done, and the request could alternately be made as an FOI request, the applicant should be advised of this option. Under s 15A, a request for access to personnel records under an administrative arrangement should be processed in 30 days, after which time, the applicant may apply under the FOI Act.
Access under the FOI Act is to existing documents. An agency does not have to create a new document in order to respond to a request.	Administrative access requests can be answered in different ways, by discussion between the applicant and the agency. For example, the agency may offer to provide an oral explanation of a decision or action; create a new document rather than provide a redacted version of existing documents; or assemble data or statistics for the applicant.
An agency must provide a statement of reasons explaining a decision to refuse an access request, including a schedule of exempt documents, and the agency's findings on any material questions of fact.	Agencies are not obliged to provide a statement of reasons for a decision not to release information administratively. It is good administration to explain why a request has been refused, and the applicant should be advised of their right to make an FOI request for agency documents.
An agency must publish information released in response to FOI access requests in a disclosure log on its website (subject to certain exceptions).	Agencies are not obliged to publish information they release administratively. However, in line with the Principles on open public sector information, agencies should adopt a proactive publication stance. If there is no legal need to protect the information it should be open to public access.
Applicants have review rights. An applicant may apply for either an internal review or Information Commissioner review of an access refusal decision under the FOI Act.	There is no general right to merit review of a decision to refuse access to information or documents under an administrative scheme. Complaint options that may be open to the person include: complaining under the agency's standard complaint handling processes; complaining to the Ombudsman about how the request was handled; or, if the person requested access to their personal information, making a privacy complaint to the Office of the Australian Information Commissioner (OAIC).
An agency cannot place any conditions or restrictions on an applicant's use or further publication of the document (although the applicant does not gain protection from ss 90–92 of the FOI Act, discussed below).	Administrative access should not be provided on less favourable terms than FOI access (where that would be available). That is not to say that agencies cannot make special access arrangements for particular purposes: for example, it is common to impose a temporary embargo upon public reporting of government announcements or news releases; and researchers are sometimes given conditional access to confidential or privileged information.

Administrative access schemes and protection against civil liability

The FOI Act provides protection against civil action (ss 90–91) and criminal prosecution (s 92) for agencies and officers who publish or give access to documents under the Act.

Section 90 provides that no action for defamation, breach of confidence or infringement of copyright lies against an agency or an agency officer solely on the ground of having given or authorised access to a document. The main qualification is that the agency or officer must have acted in good faith in the belief that publication or giving access under the Act was required or permitted. Section 92 operates in a similar way to s 90 in providing immunity from criminal prosecution.

There is a strong case for ensuring similar protection to the good faith release of information under an administrative access scheme. It may be that ss 90(1)(c) and 92(1)(c) already provide adequate protection, as they apply to publishing or giving access to a document 'in good faith, in the belief that the publication or access is required or permitted otherwise than under this Act (whether or not under an express legislative power)'. This includes discretionary disclosure outside the FOI Act or disclosure of exempt documents, if made in good faith.

Types of information and documents appropriate for release under an administrative access scheme

The types of information and documents that may be appropriate for an administrative access scheme will depend on the nature of the function and activities of the agency. However some types of information that may suit release under an administrative scheme include:

• documents containing the personal information of the requester (for example, correspondence to the requester, applications made by the requester, agency assessment of those applications, documents supplied by the requester and records of contact with the requester)
• documents containing the personal information of a requester who is a current or former employee of the agency (for example, performance appraisals, remuneration information, group certificates, workplace health and safety assessments, incident reports involving the employee)
• statistics or data relating to the agency's key functions and activities (excluding data containing identifiable personal information)
• information available on the agency's website that the requester would like to access in a different format (for example, in hard copy)
• documents that would be released in full if the request were made under the FOI Act
• information that can be provided more simply and efficiently than through an FOI request, such as information from documents that would be heavily redacted if released under the FOI Act, and information about a decision or action that is not finalised and is still in draft form.

Limitations on administrative release

Release of information or documents under an administrative access scheme may not be appropriate where:

• statutory secrecy provisions prevent release of the information
• release may breach the Privacy Act 1988 (for example, a data set of de-identified personal information that has the potential to be re-identified in whole or in part)
• a third party may object to the release of the information, and the request is better handled under the third party consultation procedures in the FOI Act
• the request would cost the agency significant resources to fulfil and the agency would be able to recoup some costs through the FOI process
• the applicant has indicated that they wish to have the opportunity, if refused information, to apply for independent review of the agency's decision by the OAIC under the FOI Act.

Setting up an administrative access scheme

An administrative access scheme must be tailored to the size of an agency, its work, the requests it typically receives for information or documents, and its regular procedures for public contact and access. Australian Government agencies are diverse in nature, function and methods, and this will be reflected in the access procedures they adopt. An agency may, for example, limit an administrative access scheme to only some of its documents (such as personal records) or establish more than one scheme to cater for the different types of records it holds.

Assessing the need for an administrative access scheme

In identifying information or documents that may suit administrative release, consider whether establishing an administrative access scheme would:

• allow your agency to deal more efficiently with access requests (in comparison to dealing with requests under FOI)
• allow your agency to process requests at a lower cost than if the documents were made available under the FOI Act
• comply with any other laws that may have a bearing on the handling of the information
• advance the object of the FOI Act to ‘facilitate and promote public access to information, promptly and at the lowest reasonable cost' (s 3(4)).

Cost of providing access

The FOI Act requires agencies to facilitate public access to information at the lowest reasonable cost (s 3(4)). Agencies cannot impose an access fee for documents provided under an administrative access scheme, but can obtain an applicant's agreement to copying and postage charges.

In some circumstances it may be appropriate for agencies to recover costs incurred from collating information for the requester (for example, integrating data or compiling statistics) as distinct from simply giving access to existing documents. It is similarly open to agencies to charge for specialist information services that are developed on a commercial or cost-recovery basis. However, as noted above, these services would not ordinarily fall within an administrative access scheme that aims to provide the community with supplementary access rights to FOI access rights.

Principle 7 of the Principles on open public sector information states that charges that may be imposed by an agency for access should be clearly explained in an agency policy that is published and regularly reviewed.

Transparency of process

Having established the need for an administrative access scheme, an agency should develop a clear procedure for dealing with requests made under the scheme. The procedure should involve:

• a clear description of the types of information or documents that may be accessed through the scheme
• a 30 day turnaround for processing of requests
• an efficient process for referral of requests to the formal FOI process where FOI is more appropriate or where the requester would prefer to apply under the FOI Act (ie, the requester is directed straight to the FOI process rather than after 30 days)
• a standard approach to establishing proof of identity (for requests for personal information)
• an outline of any charges the agency will impose for copying and postage
• a process for dealing with complaints about how a request is dealt with under the scheme
• a process for recording requests and collecting statistics to help with future review and refinement of administration
• a link to information about the FOI Act request process and an explanation as to how the administrative access scheme supplements and does not detract from an applicant's rights under that Act.

Publishing administrative access arrangements

In order to manage client expectations, agencies should publish their administrative access procedures on their website (in close conjunction with FOI information). For full details, see Guidance on agency websites: Access to information available on the OAIC's website.

Administrative access checklist

Checklist for setting up an administrative access scheme

☐	Administrative access scheme prominent on website Details of your administrative access scheme are set out on your agency's website (including on your FOI or Access to information page).
☐	Types of information available through administrative access You have clearly explained on your website what sorts of information or documents are available through your administrative access scheme and what sorts of documents should be pursued through the standard FOI request process.
☐	Procedure for requesting documents You have clearly explained the procedure for requesting information or documents through the administrative access scheme (where requests should be sent, what contact details should be given, how quickly the person can expect a response, the likely form access will be given in).
☐	Interaction with the FOI Act You have clearly explained how the administrative access scheme interacts with the FOI Act (including when an applicant may be directed to make a formal FOI access request). It should also be made clear to the public that they may go straight to the FOI process if they prefer.
☐	Proof of identity You have set out the proof of identity requirements for requests for personal information.
☐	Thirty day turnaround Your internal processes ensure that requests are acknowledged promptly and resolved in 30 days. For requests likely to take longer than 30 days, applicants are directed to make a formal request under the FOI Act.
☐	Copying and postage costs You have a standard procedure for recouping copying, reproduction and postage costs.
☐	Complaint handling You have clearly explained how people can complain about how you handled their request under the administrative access scheme (including to the Commonwealth Ombudsman).
☐	Record keeping Standard agency record keeping processes apply to documents released under the scheme (and statistics are kept, if appropriate).
☐	Review You carry out regular reviews to ensure the scheme is operating effectively and to identify any information that is routinely requested and could be published via your IPS under s 8(2)(g).