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Chapter 4: Administration of the FOI Act

Introduction

This chapter reports action taken in 2010-11 to co-ordinate the administration of the FOI Act, assist agencies to fulfil their obligations under the FOI Act, and assist members of the public to understand the rights conferred by the FOI Act. General FOI developments are also noted.

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Co-ordination and administration of the FOI Act

In September 2010 the Hon Brendan O'Connor MP, Minister for Privacy and Freedom of Information, assumed responsibility for the general administration of the FOI Act. The FOI Act was previously administered by the former Cabinet Secretary and Special Minister of State, Senator the Hon Joe Ludwig. Mr O'Connor is the first Commonwealth Minister for Privacy and Freedom of Information. On the Minister's behalf, the Privacy & FOI Policy Branch (P&FOIPB) in the Department of the Prime Minister and Cabinet has responsibility for the management of the FOI Act across the Australian Government.

In 2010-11 P&FOIPB assisted the Government in implementing major FOI reforms, including the establishment of the positions of Australian Information Commissioner and Freedom of Information Commissioner as independent monitors to oversee and promote the FOI Act. The Commissioners have wide-ranging functions including reviewing FOI access decisions made by agencies and Ministers, investigating complaints about the handling of FOI requests, providing guidance and training on the operation of the FOI Act, and reporting to government on information management policy. The reforms also established a revised objects provision in the FOI Act and a new, single form of public interest test weighted towards disclosure.

In 2010-11 the work of P&FOIPB included legal, policy and administrative advising regarding the FOI Act. Although each agency is responsible for its decisions under the FOI Act, agencies often seek the advice of the Department of the Prime Minister and Cabinet in relation to legal, policy and procedural matters arising from particular requests. Each agency is responsible for meeting its own obligations under the FOI Act.

The Minister for Privacy and Freedom of Information also administers the Australian Information Commissioner Act 2010 (AIC Act). The AIC Act established the Office of the Australian Information Commissioner (OAIC) and the new independent statutory positions of the Australian Information Commissioner and FOI Commissioner. The existing, independent statutory position of Privacy Commissioner was transferred as part of the new OAIC. The OAIC is headed by the Australian Information Commissioner, supported by the Freedom of Information Commissioner, the Privacy Commissioner and the staff of the OAIC.

The OAIC brings together in one agency the functions of privacy protection, FOI oversight and advice to government on information policy. The OAIC has a comprehensive range of functions and powers, from both the AIC Act and the FOI Act.

Powers and functions under the FOI and Privacy Acts are conferred on the Information Commissioner and can (with certain limitations) be exercised by the other two Commissioners, and OAIC staff as delegates of the Information Commissioner. In current practice, the FOI Commissioner is chiefly responsible for the FOI functions, and the Privacy Commissioner for the privacy functions.

Appointment of Australian Information Commissioner, FOI Commissioner and Privacy Commissioner

On 1 November 2010 Professor John McMillan AO commenced his term as the first Australian Information Commissioner, to head the new OAIC, which has responsibilities in relation to freedom of information, privacy protection and reporting to government on information management policy.

On the same date, Dr James Popple commenced his term as the first Freedom of Information Commissioner. Mr Timothy Pilgrim was appointed as Privacy Commissioner in July 2010.

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Measures to assist agencies to comply with the FOI Act

FOI electronic discussion list

The Department of the Prime Minister and Cabinet (PM&C) administers an electronic discussion list for FOI officers in agencies to discuss FOI matters. The forum enables the Department to broadcast FOI policy information to agencies and provides agencies with the opportunity to exchange FOI information and to seek assistance from other agencies in relation to FOI issues.

PM&C website

The PM&C FOI website at www.dpmc.gov.au/foi contains a range of FOI material including:

  • the FOI Act and Regulations
  • general information about the FOI Act and how to make a FOI request
  • FOI research aids
  • FOI Guidelines issued by PM&C, which are relevant to FOI requests received prior to 1 November 2010 (the OAIC assumed responsibility for preparing the FOI Guidelines from 1 November 2010)
  • a list of Australian Government FOI Contact Officers
  • FOI annual reports
  • links to other FOI sites.

OAIC website

In anticipation of the establishment of the OAIC, a temporary public website was created in October 2010 (http://www.oaic.gov.au/) to publish information about the new organisation including in relation to the new functions covering FOI and information policy.

The OAIC website contains a range of FOI material for agencies, including:

  • general information about the OAIC and FOI
  • Guidelines issued under s93A of the FOIAct
  • Agency Resources, including information on processing requests, calculating and imposing charges, amendment and annotation of personal records, exemptions and a statement of reasons checklist
  • materials to assist agencies implement the Information Publication Scheme and disclosure log requirements
  • presentations delivered at Information Contact Officer Network meetings
  • the Principles on open public sector information and supporting material
  • materials provided at agency training sessions on the 2010 FOI reforms
  • guidance on agency FOI statistical returns to the OAIC.

This website will be maintained until a new website incorporating all functions of the OAIC is developed. The website includes links to the website of the former Office of the Privacy Commissioner.

Guidelines issued by PM&C

The PM&C issued FOI Guidelines until the OAIC assumed responsibility for this function from 1 November 2010. The Department's FOI Guidelines, which are relevant to FOI requests received by agencies and Ministers prior to 1 November 2010, are available at www.dpmc.gov.au/foi. The Guidelines are intended to provide practical advice on the operation of the FOI Act.

Guidelines issued by the Information Commissioner

Section 93A of the FOI Act provides that the Australian Information Commissioner may issue written guidelines for the purposes of the FOI Act. Agencies must have regard to these guidelines in performing a function or exercising a power under the FOI Act (s 93A(2)). The guidelines are not a legislative instrument for the purposes of the Legislative Instruments Act 2003 (s 93A(3)).

The Guidelines summarise the key provisions of the FOI Act and outline important amendments that were made to the FOI Act by the Freedom of Information Amendment (Reform) Act 2010. The Guidelines also contain guidance on the performance of functions and the exercise of powers under the FOI Act. The OAIC will apply these Guidelines in discharging the functions conferred on the Commissioner by the FOI Act and the Australian Information Commissioner Act 2010.

The Guidelines will be updated from time to time to take account of decisions by the Commissioners under s 55K of the FOI Act on access refusal and access grant decisions, and relevant decisions of the Administrative Appeals Tribunal and Federal Court. It is open to a party to a review proceeding before the Commissioner to frame a submission that is in agreement or disagreement with a statement in these Guidelines, or that raises an issue not canvassed in the Guidelines.

As at 30 June 2011, the following parts of the guidelines had been published:

Part 1 - Introduction to the Freedom of Information Act 1982

Part 2 - Scope of application of the Freedom of Information Act

Part 4 - Charges for providing access

Part 5 - Exemptions

Part 6 - Conditional Exemptions

Part 7 - Amendment and annotation of personal records

Part 9 - Internal agency review of decisions

Part 10 - Review by the Information Commissioner

Part 11 - Complaints and investigations

Part 12 - Vexatious applicant declarations

Part 13 - Information Publication Scheme

Part 14 - Disclosure log

Part 15 - Reporting.

Other guidance material

The OAIC also developed other guidance material in relation to its FOI functions which it has made available on its website, including:

  • Documents held by government contractors - agency obligations under the Freedom of Information Act 1982: guidance to assist agencies to take contractual measures to ensure that they receive documents from contractors who provide services to the public on behalf of the Government, in order to meet an FOI request.

  • The Information Publication Scheme and Disclosure Log determinations policy and procedure to assist agencies, ministers, organisations and individuals to understand the process for applying for a determination.

  • Key amendments to exemption provisions under the Freedom of Information Act 1982: asummary of the key changes to exemptions provisions, published as part of OAIC training materials.

  • Guidance on how to notify and request extensions of FOI processing time from the Information Commissioner.

  • Guidance for agency websites: guidance issued under s93A of the FOIAct to promote access to government information by ensuring that members of the public can easily find information that agencies have published on their websites as well as information on how they can make requests under the FOIAct. This guidance also aims to assist agencies to comply with their obligations under s15(3) of the FOIAct to take reasonable steps to assist any person who wishes to make an FOI request.

  • Guide to the quarterly and annual FOIAct statistical returns to the OAIC.

Information Contact Officer Network

The OAIC manages the Information Contact Officer Network (ICON), a network for freedom of information, information publication scheme and privacy contact officers in Australian Government agencies, the Norfolk Island administration and, relating to privacy only, ACT Government agencies.

ICON meetings are held quarterly and provide members with the opportunity to receive updates on the work of the OAIC, and to network and share knowledge with information professionals in other agencies.

Two ICON meetings were held during 2010-11. Attendance at these meetings ranged from 160-200 people.

The meetings included discussion on topics such as compliance with the Information Publication Scheme, privacy impact assessments, FOI extension of time provisions and Privacy Awareness Week. The agenda, related documents and the full audio from each meeting is available on the OAIC website: www.oaic.gov.au/publications/agency_resources.html#icon_resources

Information Publication Scheme

The Information Publication Scheme (IPS) provisions of the FOI Act commenced on 1 May 2011. The IPS requires agencies to publish a broad range of information on their websites including an information publication plan showing how the agency proposes to comply with the IPS.

The Information Commissioner has specific functions in relation to the IPS under ss 8E, 8F and 93A of the FOI Act. These functions include assisting agencies to identify and prepare information for publication under the IPS; reviewing the operation of the IPS in each agency (in conjunction with the agency); investigating agencies' compliance with the IPS; monitoring, investigating and reporting on the operation of the IPS; and issuing guidance to which agencies must have regard in performing functions and exercising powers under the IPS.

Prior to the commencement of the IPS, the OAIC assisted agencies by:

  • conducting consultation sessions with agencies on the IPS and associated accessibility issues
  • publishing Guidelines on the IPS, as noted above
  • publishing a self-assessment checklist for agencies which sets out the key compliance requirements of the IPS
  • publishing an IPS Compliance Program with information about how the Information Commissioner intends to assist agencies in reviewing the IPS
  • responding to individual agency requests for information and advice on information required to be published under the IPS.

The Information Commissioner has ongoing monitoring and compliance functions relating to the IPS. These include reviewing the operation of the IPS in conjunction with each agency, and otherwise monitoring, investigating and reporting on the operation of the IPS.

Disclosure log requirements

Since 1 May 2011, agencies have been required, with some exceptions, to publish on a website information about documents that have been disclosed following a request under the FOI Act. This publication is known as a ‘disclosure log'.

The Information Commissioner has assisted agencies, ministers and the public to understand the disclosure log requirements by, among other things, publishing a discussion paper for public consultation, conducting consultation sessions with agencies and ministerial staff, publishing a disclosure log fact sheet, publishing Guidelines on the disclosure log requirements, and providing written and verbal responses to requests for information and advice.

Training for Australian Government agencies

The OAIC provided training on the OAIC and the 2010 FOI reforms to Australian Government agencies. Between October 2010 and March 2011, the OAIC provided 18 training sessions to 338 staff from 84 agencies. The OAIC trained staff from all of the 15 agencies that received 80 or more FOI requests in 2009-10.

It also trained staff from:

  • 16 agencies that received between 20 and 79 FOI requests in 2009-10
  • 32 agencies that received between 1 and 19 requests in 2009-10
  • 24 agencies that did not receive any FOI requests in 2009-10.

The training provided an overview of changes to the FOI Act and the operation of the OAIC.

The OAIC's training materials are available at www.oaic.gov.au/publications/agency_resources.html.

FOI advice provided

The OAIC has provided policy advice to agencies and the public on a number of FOI issues, including:

  • the application of the FOIAct to particular agencies, statutory office holders and particular types of documents
  • timeframes for processing requests
  • FOI request transfer requirements
  • charges
  • review rights including review by the Information Commissioner
  • interaction between the FOIAct and the Archives Act 1983 and Privacy Act 1988
  • authorisations and delegations under the FOIAct.

Speeches and presentations

In 2010-11, the Australian Information Commissioner and the FOI Commissioner delivered a number of presentations on FOI and the 2010 FOI reforms to a number of Australian Government agencies.

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Measures to assist the public

Information Publication Scheme

By ensuring that the IPS operates effectively, the Information Commissioner assists the public to have access to maximum government information in accordance with the principal objectives of the FOI Act.

PM&C website

The Department of the Prime Minister and Cabinet FOI website is at www.dpmc.gov.au/foi. The site includes frequently asked questions for the public.

OAIC website

The OAIC website (http://www.oaic.gov.au/) includes a range of materials to assist the public understand the FOI process and the OAIC's role and functions, including:

  • general information about the OAIC and FOI process
  • information about how to seek an Information Commissioner merits review (including an online merits review form)
  • information on how to make an FOI complaint to the OAIC (including an online complaints form)
  • 14 fact sheets covering a range of issues including charges, exemptions, review rights and how to make a complaint
  • presentations delivered at Information Contact Officer Network meetings
  • speeches on FOI by the OAIC Commissioners
  • materials provided at agency training sessions on the 2010 FOI reforms.

FOI Fact Sheets

The OAIC produced the following fact sheets to assist the public to understand the OAIC's role and functions, the process of obtaining documents under the FOI Act, agency obligations and rights of review and complaint:

  1. The Office of the Australian Information Commissioner - our functions
  2. FOI - What's changed?
  3. FOI - What information does the government hold?
  4. FOI - The Information Publication Scheme for Australian Government agencies
  5. FOI - Your personal information
  6. FOI - How to apply
  7. FOI - Charges
  8. FOI - Exemptions
  9. FOI - What you can expect from government agencies
  10. FOI and the Minister's office
  11. FOI - Your rights if someone seeks information about you or your business
  12. FOI - Your review rights
  13. FOI - How to make a complaint
  14. FOI - Disclosure logs

OAIC enquiries line

The OAIC enquiries line (1300 363 992) provides information about FOI issues and FOI law for the cost of a local call. In 2010-11, the enquiries line received 734 calls specifically related to FOI.

The majority of callers were individuals, followed by agencies seeking advice on FOI. Table 4.1 sets out the top ten caller types. Table 4.2 provides a breakdown of issues discussed in the calls received during 2010-11.

Table 4.1 — Top 10 caller types
Caller typesTotal
Individual 358
Government - Federal 282
Legal, accounting and management services 14
Media 12
Business/professional associations and unions 8
Government - State 4
Health service providers 3
Unknown 3
Insurance 2
Personal services (including employment, child care, veterinarians) 2
Table 4.2 — Breakdown of Issues in FOI Calls Received
IssuesTotal
General processes 363
Processing by agency 225
Information Publication Scheme 94
Access to general information 34
Access to personal information 21
Amendment and annotation 5
Vexatious application 4
Agency statistics 1

The OAIC responds to requests for information that are received by email, letter or fax. The OAIC received 209 FOI-related written enquiries in 2010-11 through the enquiries team.

Section 8 statements

Section 8 of the FOI Act, before it was amended on 1 May 2011, required each Minister responsible for an agency to publish an annual statement setting out details of the agency's functions, categories of documents held, and arrangements for access by the public to documents in the agency's possession. These statements were published in the annual report of the agency or of the portfolio department to which the agency relates.

With the commencement of the Information Publication Scheme on 1 May 2011, these requirements of s 8 were removed. The final s 8 statements apply to the period 1 July 2010 to 30 April 2011.

Section 9 statements

Section 9 of the FOI Act, before it was amended from 1 May 2011, required the principal officer of each agency to make available at National Archives of Australia (NAA) offices in all capital cities, an up-to-date statement listing documents used by the agency in making decisions that affect the public. The statements were required to be updated at 3-monthly intervals where practicable, and in any case within twelve months after the last statement. Recent practice saw the NAA publish the statements on its web site. Principal officers of agencies were also required to make available for inspection and purchase all documents listed in their agency's s 9 statement.

With the commencement of the IPS on 1 May 2011, these s 9 requirements were removed. The final s 9 statements apply to the period 1 July 2010 to 30 April 2011. Table 4.3 is a list of final s 9 statements and their dates.[1] Table 24 lists only those agencies that were identified as being subject to the FOI Act prior to the 2010 reforms, based on information provided by agencies. (Appendix L lists agencies and ministers subject to the FOI Act as at 30 June 2011.)

Table 4.3 — Section 9 statements held by the National Archives of Australia as at 30 April 2011
AgencyDate of statement
Aboriginal Hostels Limited 8 December 1993
Administrative Appeals Tribunal 15 December 2010
Agriculture, Fisheries and Forestry 1 July 2010
Airservices Australia 1 November 2002
Albury-Wodonga Corporation 9 June 2010
Attorney-General's Department 10 June 2005
AusAID February 2010
Austrade 23 February 2010
Australia Council for the Arts 1 August 1995
Australian Accounting Standards Board (nil return) 26 September 2001
Australian Broadcasting Corporation 18 September 2006
Australian Bureau of Statistics (includes Australian Statistics Advisory Council) 20 July 2010
Australian Centre for International Agricultural Research 24 February 2010
Australian Commission for Law Enforcement Integrity 20 January 2010
Australian Competition and Consumer Commission 5 July 2010
Australian Competition Tribunal (nil return) 22 October 2001
Australian Customs and Border Protection Service 17 August 2009
Australian Electoral Commission 2 February 2010
Australian Federal Police 14 September 2007
Australian Fisheries Management Authority 1 November 2010
Australian Hearing 31 July 2008
Australian Institute of Aboriginal and Torres Strait Islander Studies June 1995
Australian Institute of Family Studies (nil return) 23 February 2010
Australian Institute of Marine Science 11 March 1998
Australian Law Reform Commission 10 April 2008
Australian Maritime Safety Authority 15 March 2010
Australian Organ and Tissue Donation and Transplantation Authority 31 August 2009
Australian Pesticides and Veterinary Medicines Authority 29 March 2010
Australian Postal Corporation 30 December 1995
Australian Prudential Regulation Authority 19 June 2006
Australian Public Service Commission 1 January 2010
Australian Radiation Protection and Nuclear Safety Agency 25 September 2001
Australian Research Council 30 June 2008
Australian Securities and Investments Commission 4 March 2008
Australian Sports Commission 1 April 2010
Australian Taxation Office available on the ATO website[2]
Australian Transaction Reports and Analysis Centre 22 March 2011
Australian War Memorial 12 February 2009
Australian Wine and Brandy Corporation 9 November 2009
Broadband, Communications and the Digital Economy 30 June 2009
Bureau of Meteorology 13 March 2008
Civil Aviation Safety Authority 26 August 2009
Classification Review Board (nil return) 19 September 2001
Comcare (includes Seafarers Safety, Rehabilitation and Compensation Authority) 1 July 2010
Commonwealth Grants Commission 15 July 2003
Commonwealth Ombudsman 22 July 2009
Commonwealth Scientific and Industrial Research Organisation (CSIRO) 30 June 2006
ComSuper 31 October 2009
Copyright Tribunal of Australia (nil return) 6 July 2004
Cotton Research and Development Corporation 9 November 2009
CrimTrac 23 August 2006
Defence (includes Australian Military Forces Relief Trust Fund, Royal Australian Navy Relief Trust Fund, Army and Air Force Canteen Service Board of Management, Royal Australian Air Force Veterans' Residences Trust Fund, Royal Australian Navy Central Canteens Board, Trustees of the Royal Australian Air Force Welfare Trust Fund and Defence Housing Australia) 1 February 2010
Defence Force Discipline Appeal Tribunal (nil return) 25 October 2001
Defence Force Retirement and Death Benefits Authority 31 October 2009
Director of Public Prosecutions 3 July 2006
Education, Employment and Workplace Relations 30 June 2010
Environment, Water, Heritage and the Arts 17 March 2008
Export Finance and Insurance Corporation 8 March 2010
Fair Work Ombudsman 12 August 2010
Families, Housing, Community Services and Indigenous Affairs 6 September 2010
Federal Court of Australia 11 February 2010
Federal Magistrates Court 27 July 2010
Finance and Administration 4 May 2006
Fisheries Research and Development Corporation 31 August 2010
Foreign Affairs and Trade 31 January 2010
Gene Technology Regulator July 2010
Grains Research and Development Corporation 31 August 2010
Grape and Wine Research and Development Corporation 11 November 2010
Great Barrier Reef Marine Park Authority 17 August 2009
Health and Ageing June 2010
Human Services (includes Child Support Agency and CRS Australia) 26 August 2009
Immigration and Citizenship 31 October 2010
Infrastructure Australia 26 October 2009
Infrastructure, Transport, Regional Development and Local Government 31 October 2009
Innovation, Industry, Science and Research 1 February 2010
Insolvency and Trustee Service Australia 2 October 2001
IP Australia 14 September 2009
Merit Protection Commissioner 1 January 2010
Migration Review Tribunal July 2004
Military Superannuation and Benefits Board of Trustees No. 1 31 October 2009
National Archives of Australia 15 December 2009
National Competition Council 22 February 2007
National Library of Australia 23 December 2010
National Museum of Australia 1 December 2006
National Native Title Tribunal 26 July 2010
National Rural Advisory Council 30 June 2006
Office of Parliamentary Counsel (nil return) 15 July 2010
Office of the Australian Building and Construction Commissioner 16 April 2008
Office of the Official Secretary to the Governor-General (nil return) 7 April 2010
Office of the Registrar of Aboriginal and Torres Strait Islander Corporations 30 March 2008
Office of the Renewable Energy Regulator 15 September 2008
Old Parliament House 24 September 2009
Plant Breeder's Rights Advisory Committee (nil return) 15 October 2009
Prime Minister and Cabinet 23 January 2009
Private Health Insurance Administration Council 20 September 2006
Productivity Commission (nil return) 16 July 2010
Refugee Review Tribunal 23 September 2003
Reserve Bank of Australia 22 November 2004
Resources, Energy and Tourism 4 November 2010
Rural Industries Research and Development Corporation 18 August 2010
Social Security Appeals Tribunal 14 February 2011
Special Broadcasting Service Corporation 27 April 2007
Sugar Research and Development Corporation 20 October 2008
Superannuation Complaints Tribunal 9 August 2010
Treasury 23 June 2010
Veterans' Affairs (includes Repatriation Commission, Military Rehabilitation and Compensation Commission and Director of War Graves (Office of Australian War Graves) 30 October 2008
Wheat Exports Australia 22 December 2009

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FOI annual reports

This report, and previous FOI annual reports are available at the Department of the Prime Minister and Cabinet FOI website: http://www.dpmc.gov.au/foi/.

This FOI Annual Report is also available — and future FOI annual reports will be available — at the OAIC website: http://www.oaic.gov.au/.

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Footnotes

[1] This information was provided by the National Archives of Australia.

[2] See law.ato.gov.au/atolaw/browse.htm?toc=02:FOI.