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Chapter 3: Promote and secure open government

Contents

  1. Overview
  2. Role of the OAIC in monitoring compliance with the FOI Act
  3. Monitoring and reviewing the Information Publication Scheme in conjunction with agencies
  4. Reviewing Freedom of Information Decisions
  5. Complaints and own motion investigations
  6. Processing agency extension of time requests
  7. Responding to enquiries
  8. Information Publication Scheme
  9. Disclosure log
  10. FOI Guidelines
  11. Fact sheets
  12. Other guidance material
  13. FOI advice provided

Overview

The Freedom of Information Act 1982 (the FOI Act) confers upon any person the legal right to access documents held by Australian Government ministers, departments and agencies. Building on reform proposals to the FOI Act by the Australian Law Reform Commission and the Administrative Review Council,[1] the Freedom of Information Amendment (Reform) Act 2010 was passed by Parliament in May 2010. The amendments took effect from 1 November 2010, with the exception of the Information Publication Scheme and disclosure log requirements which commenced on 1 May 2011.

The FOI Act reforms made important changes to the way information held by government is managed and accessed by members of the public. A pro-disclosure policy permeates the changes, notably in a new objects clause that states the objects of the FOI Act:

  • to increase public participation in government processes, with a view to promoting better-informed decision making
  • to increase scrutiny, discussion, comment and review of the government's activities
  • to increase recognition that information held by government is to be managed for public purposes and is a national resource
  • to facilitate and promote public access to information promptly and at the lowest reasonable cost.

Reforms to the FOI request process make it easier for the public to obtain documents under the FOI Act. An application can be lodged by email. Application and internal review fees have been abolished and there is no charge for the first five hours of decision-making time. The right of access now extends to documents held by contracted service providers who are delivering services to the public on behalf of an agency: from 1 November 2011, agencies are required to take contractual measures to ensure that an FOI request can be made for documents that relate to the performance of the contract.

Many of the exemptions in the FOI Act are now subject to a new single public interest test that is weighted towards disclosure. These 'conditional exemptions' include the exemptions for deliberative processes, agency operations, Commonwealth-State relations, personal privacy, business information, research and the economy. Access to a conditionally exempt document can only be denied if, in the circumstances, access at that time would on balance be contrary to the public interest.

An applicant who wishes to have an FOI access decision reviewed can seek internal review by the agency or apply directly to the Information Commissioner. A person can also lodge a complaint with the Information Commissioner about actions taken by an agency in the performance of functions or the exercise of powers under the FOI Act. (These review and complaint functions of the Information Commissioner are similar to those previously exercised by the Administrative Appeals Tribunal and the Commonwealth Ombudsman.)

There are new obligations imposed on Australian Government agencies to publish information on websites. From 1 May 2011, all Australian Government agencies subject to the FOI Act must publish a greater range of information, including 'operational information', as well as a disclosure log of documents released in response to FOI requests they have received.

More information will also be available to the public at an earlier stage as a result of changes to the 'open access period' under the Archives Act 1983. The open access period is the age at which most government information is released to the public. The period is being reduced from 30 years to 20 years, over a 10 year period commencing on 1 January 2011. The open access period for Cabinet notebooks will be reduced from 50 years to 30 years.

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Role of the OAIC in monitoring compliance with the FOI Act

The OAIC promotes and secures open government by exercising a range of functions to monitor compliance with the FOI Act by agencies and ministers. These OAIC functions are discussed in the following section.

Merit review of FOI decisions

The Freedom of Information Amendment (Reform) Act introduced new arrangements for external merit review of FOI decisions. An FOI applicant who disagrees with an FOI decision can apply directly to the Information Commissioner (IC Review) as an alternative to, or after, agency internal review. The Information Commissioner can review decisions made by agencies and ministers under the FOI Act, including:

  • decisions refusing to grant access to documents wholly or in part
  • decisions granting access to documents, where a third party has a right to object (for example, if a document contains their personal information)
  • decisions about charges imposed in relation to access requests, including decisions refusing to waive or reduce charges
  • decisions refusing to amend or annotate records of personal information.

IC Review provides a simple, practical and cost-efficient system of external merit review. Most matters are reviewed on the papers rather than through formal hearings. Agencies and ministers must use their best endeavours to assist the Information Commissioner to make the correct and preferable decision. The parties to IC reviews are also encouraged to resolve review issues between themselves.

In determining an IC review application, the Information Commissioner has power to affirm, vary or set aside the agency decision under review. The full text of each IC review decision is available on the OAIC website and on the Australasian Legal Information institute website, www.austlii.edu.au. Many applications for review will be finalised without a decision by the Commissioner. Applications may be resolved by agreement either formally (where the agreement is on terms that are within the powers of the Information Commissioner) or informally (where the applicant chooses to withdraw their IC review application).

The Information Commissioner's decisions on IC review may be reviewed by the Administrative Appeals Tribunal, on the application of a party to the IC Review.

Part 10 of the Information Commissioner's Guidelines, issued under s 93A of the FOI Act, details the process that the OAIC follows for IC reviews.

FOI complaints and investigations

One of the Information Commissioner's functions is investigating agency actions relating to the handling of FOI matters. These investigations can arise from complaints or can be conducted at the Commissioner's own initiative. Prior to 1 November 2010, complaints about FOI processing were handled by the Commonwealth Ombudsman. The Information Commissioner cannot investigate an action taken by a minister in dealing with FOI matters.

The complaints process is primarily intended to deal with the manner in which agencies handle FOI requests and procedural compliance matters. A complaint about the merit of an FOI access refusal or grant decision will usually be treated instead as an application for IC Review, if this option is available.

Complaint investigations

Any person can complain to the Information Commissioner about actions taken by an agency in the performance of functions or the exercise of powers under the FOI Act. Investigations are conducted in private and in a way that the Information Commissioner thinks fit. This can include making inquiries of agency officers, requiring the production of information and documents, and entering premises to carry on investigations or inspect documents.

An FOI complaint investigation can end through a complainant withdrawing the complaint, the Information Commissioner providing written investigation results and recommendations to the respondent agency, or the Commissioner deciding not to investigate the complaint further. A decision not to investigate or not to further investigate an FOI complaint can be made before an investigation commences or once the investigation is underway: for example, an investigation may reveal that an agency has adequately dealt with the complaint.

Part 11 of the Information Commissioner's Guidelines details the process that the OAIC follows in investigating complaints.

Own motion investigations

The Information Commissioner may undertake an own motion investigation, which may consider a single agency action or a systemic or recurring issue in an agency's FOI practices and processes. It is likely that own motion investigations will mostly be confined to systemic issues.

Extensions of time

The FOI Act sets out timeframes in which agencies and ministers must process FOI requests. If a decision on a request is not made within the statutory timeframe, the agency or minister is deemed to have made a decision to refuse the request and the FOI applicant can apply for review of that decision.

The 2010 FOI Act amendments strengthened the obligation on agencies and ministers to heed the time limits by providing that an FOI charge cannot be imposed if a decision is reached outside the statutory timeframe. An applicant can agree in writing to extend the timeframe for a further 30 days: any such agreement must be notified to the Information Commissioner.

The Commissioner can grant an extension of time to enable an agency or minister to process a complex or voluminous FOI request, or where there was a deemed decision to refuse a request for documents or to amend or annotate a personal record. An extension granted after a deemed decision can provide a supervised timeframe for an agency or minister to finalise the request.

The Commissioner can also grant an extension of time to apply for IC review of an access refusal or access grant decision. The standard time limit for applying for IC review is 60 days for access refusal decisions and 30 days for access grant decisions.

Vexatious applicant declaration requests

The Information Commissioner has a new power to declare a person to be a vexatious applicant if satisfied that the grounds for a declaration in s 89L exist. An agency or minister can apply to the Commissioner to make a declaration or the Commissioner can act on his own motion. A vexatious applicant declaration is not an action that the Commissioner will undertake lightly, but its use may be appropriate at times. A declaration by the Information Commissioner can be reviewed by the Administrative Appeals Tribunal. Part 12 of the Information Commissioner's Guidelines provides guidance on such declarations.

No agencies applied to the Commissioner to make a declaration that a person was a vexatious applicant in 2010–11, and the Commissioner did not make any vexatious applicant declarations.

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Monitoring and reviewing the Information Publication Scheme in conjunction with agencies

The Information Commissioner has a number of monitoring and compliance functions under the FOI Act relating to the Information Publication Scheme. These include:

  • assisting agencies to identify or prepare information required to be published under the IPS
  • reviewing the operation of the IPS in conjunction with each agency, and otherwise monitoring, investigating and reporting on the operation of the IPS.

The OAIC will work with all agencies to assist them to undertake a review of the operation of the IPS. A first step was the preparation of a self-assessment tool and other material that enables agencies to identify and address gaps or shortcomings in their current IPS compliance or framework. In addition, the OAIC will review agency websites to check IPS compliance, commencing in late 2011. All agencies will be surveyed twice over the five year review period.

The OAIC will measure the following five key elements of IPS compliance:

  1. Agency IPS Plan – has the agency published an IPS plan that covers all issues recommended by the OAIC, including agency review?

  2. Administrative arrangements – has the agency adopted appropriate governance arrangements to meet its IPS obligations, and does it have an information management framework that facilitates identification and publication of IPS documents?

  3. IPS document lists – has the agency published all required IPS information and is it accurate, up-to-date and complete? Has the agency published additional information under the IPS?

  4. IPS information architecture – is information published by the agency under the IPS easily discoverable and accessible by all sectors of the Australian community?

  5. Agency compliance review – does the agency have appropriate processes, systems and resources in place to undertake continual review and improvement of IPS implementation?

This compliance methodology will be applied in a flexible manner that takes account of the size, functions and other reporting obligations of agencies. As noted above, the OAIC will also collaborate with agencies over the next five years to encourage continuing improvement in meeting their IPS obligations.

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Reviewing Freedom of Information Decisions

Overview of IC review applications

In the period 1 November 2010 to 30 June 2011, the Information Commissioner received 176 applications for IC Review raising 250 review issues. All but two of the applications sought review of access refusal decisions; two  applications were for review of access grant decisions.

Upon receipt a request is evaluated to see if it is a valid review application. The OAIC may also make preliminary inquiries to determine whether to undertake an IC review.

Twenty-nine of the applications were finalised by 30 June 2011. Four of these were concluded through a published decision of the Freedom of Information Commissioner, affirming the agency decision in two cases and setting aside the agency decision and making a substituted decision in the other two. The full text of each IC review decision is available on both the OAIC website and the AustLII website.

Eighteen IC review requests were identified as invalid; consideration was given to whether these could be usefully responded to as a complaint or enquiry, or assistance provided to the applicant to make a valid review application. The most common reason affecting validity was that the original FOI request was made prior to 1 November 2010. In some other cases, applicants had sought review before there was a reviewable decision, such as a decision on the imposition of a charge. The remainder of review applications finalised were either resolved by agreement, withdrawn, or closed at the discretion of the Commissioner.

Many IC reviews can be resolved through agreement between the parties rather than through a formal decision by the Commissioner. The OAIC has encouraged resolution by agreement between the parties. This is particularly useful where the decision for which IC review is sought is a deemed decision or turned on the exercise of discretion to impose a charge. Many disputes can arise from a misunderstanding between the parties, including about issues underlying the FOI request, and the IC review process can be a catalyst for reopening communication and resolving the dispute.

Case study: resolution of IC review by agreement between the parties

An FOI applicant sought review of an agency decision not to reduce processing charges on the applicant's FOI request. The applicant was a journalist, seeking access to agency documents to publish a story. The applicant contended that charges should be reduced to reflect the public interest in the documents being released.

The OAIC case officer provided the applicant and the agency with an early neutral evaluation of the case, indicating its similarities with a previously decided IC Review, Besser and Department of Infrastructure and Transport [2011] AICmr 2.

This assisted the agency and the applicant in their negotiations, and they settled the dispute. The agency agreed to reduce charges by 50%. The agreement between the applicant and the agency was implemented through s 55F of the FOI Act, which allows the Information Commissioner to make a decision in the terms of an agreement between the review parties.

Issues raised in IC Reviews

The three most common issues arising in review applications in 2010–11 were:

  • public interest conditional exemptions (almost 30% of review issues); the most commonly contested conditional exemption was the personal privacy exemption (s47F)
  • exempt document exemptions (over 25% of review issues)
  • refusals to process requests on the basis that the documents requested did not exist or there was a practical refusal reason (almost 20% of review issues).

Other issues raised in IC Review applications were the imposition of charges, decisions that requested documents were not within the scope of the FOI Act, refusals to amend personal records, and delayed/deferred access decisions.

Most frequent respondents

Table 3.1 lists the top five respondent agencies for IC review applications. These agencies also receive the highest number of FOI requests

Table 3.1 – Top five respondent agencies for IC review applications
Respondent agencyIC review applications received*
Department of Immigration and Citizenship 27
Australian Securities and Investments Commission 17
Centrelink 16
Australian Taxation Office 11
Australian Federal Police 9

[*] Applications received will be higher than the number of IC reviews commenced in the reporting year. In some applications received in 2010–11, the OAIC was still considering whether to undertake a review.

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Complaints and own motion investigations

In the eight months from 1 November 2010, the OAIC received 88 FOI complaints and finalised 39 of these. No own motion FOI investigations were commenced in 2010–11.

The 88 complaints received by the OAIC in an eight month period is comparable to the 137 FOI complaints received by the Commonwealth Ombudsman in the full 2009–10 financial year.[2]

Table 3.2 – Respondent agencies that have received more than two complaints
AgencyComplaints received
Child Support 13
Centrelink 11
Department of Immigration and Citizenship 9
Australian Taxation Office 8
Department of Veterans' Affairs 5
Australian Securities and Investments Commission 4
Australian Federal Police 3

The most frequently raised issue in FOI complaints was processing delay. Many complaints about timeliness could be avoided if agencies maintained open and regular communication with FOI applicants, assisting them to focus the scope of their FOI request so that it can be completed in a timely manner. Applicants are more willing to agree to extend processing times, or accept that extra time is necessary, if they understand the difficulties that agencies face in processing the requests. Many disputes about timeliness involve poor communication on the part of an agency to keep the FOI applicant informed about the progress of their request. The OAIC has been working to encourage better communication between FOI applicants and agencies about processing of requests, both when complaints arise, and through its day-to-day engagement with agencies in the processing of extension of time requests.

After timeliness, the next most common issue raised in complaints was unsatisfactory customer service. Dealing with complaints that fell into this category often entailed investigating whether an agency took reasonable steps to assist an applicant make an FOI request in the manner that the Act requires.

In its 2009–10 annual report, the Commonwealth Ombudsman noted that, in response to some complaints, the Ombudsman had suggested that an agency provide additional resources to manage processing of FOI requests.[3] The OAIC has not yet made any formal recommendations to agencies about resource allocation, and is aware informally that many agencies have committed extra resources to FOI work. It is evident that the FOI reforms have resulted in a significantly higher volume of FOI requests being processed by some agencies. Agencies must ensure that they allocate adequate resources to meet their obligations under the FOI Act.

Resolving FOI complaints

Table 3.3 indicates the method by which the 39 complaints in 2010–11 were finalised:

Table 3.3 – Method for finalising complaints
Closure methodNumber
s86 – notice of investigation results provided to agency 3
s70 – complaint not in jurisdiction 11
s73(a) – complaint action not related to FOI 2
s73(d)(i) – agency adequately dealt with complaint 13
s73(d)(ii) – agency is currently dealing with complaint 2
s73(e) – complaint frivolous, vexatious or lacking in substance 2
s73(f) – complainant has insufficient interest 1
Complaint withdrawn 5

In some FOI complaints, the applicant's relationship with an agency has broken down. This can result from a lack of understanding on both sides. The following case study is an example of how the OAIC seeks to resolve the impasse that can result in such cases.

Case study: resolution of complaint

An agency refused an FOI request on the basis that processing the request would constitute an unreasonable diversion of resources – the agency claimed that the request was too broadly framed to be processed. The applicant had not agreed to narrow the scope of his request. The applicant lodged a complaint with the Information Commissioner (IC Review was not available, as the decision was made prior to 1 November 2010).

It was apparent that there was a high level of frustration and a lack of trust between the applicant and the agency. The agency was of the view that the applicant was 'fishing for information' and not actually requesting particular documents.

The OAIC commenced a conciliation process, and asked the applicant to identify precisely the nature of the documents that he wanted. The agency agreed to search for and consider release of that document. It came down to one record that the agency had a statutory obligation to create and place in the Government Gazette. This aspect of the complaint would normally fall outside the scope of an FOI request, as s 4 defines 'document' as not including 'material maintained for reference purposes that is otherwise publicly available'. The agency nevertheless agreed to obtain a copy of that document from the agency files. However, it transpired that the requested document did not exist and the agency had not met its statutory obligation to create the record. The agency's FOI branch found the next closest document within the agency's files and provided this to the applicant outside of FOI.

The complainant was satisfied with this outcome, and withdrew the complaint.

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Processing agency extension of time requests

During the first eight months of the operation of the amended FOI Act, the OAIC processed 1096 notifications and requests from agencies concerning extensions of FOI processing time. This new regulatory role of the OAIC effectively commenced in December 2010 for requests made on or after 1 November 2010. The OAIC endeavours to respond to extension of time requests from agencies within five working days. This is being achieved in most cases and is aided by better communication by agencies with the OAIC and applicants. Table 3.4 shows the number of extension of time requests and notifications received in 2010–11, and the outcome in each.

Table 3.4 – Extension of time requests and notifications received
Request typeGranted or acknowledgedGranted with conditionsNot grantedInvalid requestWithdrawnTotal
S 15AA – agreement between agency and applicant 834 0 0 4 4 842
S 15AB – OAIC approval – complex or voluminous request 122 6 13 4 11 156
S 15AC – OAIC approval – deemed refusal of FOI request 61 6 5 0 16 88
s 51DA – OAIC approval – deemed refusal of request to amend personal record 0 0 0 0 1 1
s 54D – deemed affirmation of original decision on internal review 4 0 2 1 1 8
s 54T – OAIC extension to lodge an IC review 0 0 1 0 0 1
Total 1021 12 21 9 33 1096

Extension of time matters fall into two categories. There are those (77 per cent) where an agency notifies the OAIC of an agreement with an applicant under s 15AA. In these cases, the OAIC registers the notification and acknowledges receipt to the agency. In a few cases, the notifications were withdrawn or determined to be invalid; in most it was because the FOI request was lodged prior to 1 November 2010 or the extension agreement occurred after the request had been deemed to be refused. However, the OAIC does not routinely scrutinise the validity of s 15AA notifications; mostly this scrutiny occurs where an agency subsequently applies to the OAIC for further time or in an IC review where the date of the agency's actual or deemed decision is in issue.

The second category comprises matters where the OAIC grants an extension of FOI processing time to an agency or to a person to lodge an IC review. The OAIC processed over 250 such requests in the reporting period. Less than 10 per cent of these were not granted. However, in some cases, the length of the extension granted by the OAIC was less than the period requested by the agency.

These extension of time provisions are an important new feature of the FOI Act. They add pressure on agencies to strive to process FOI requests within the statutory timeframes; and they encourage less formal and more interactive engagement between agencies and applicants about the scope of FOI requests and the expected processing times. As a result of these changes and the opportunity for IC review of deemed decisions, agencies are more accountable for processing FOI requests in a timely way.

The OAIC has encouraged agencies and ministers to give early consideration to the possible need to obtain an extension of time from the Information Commissioner. Applicants are generally more willing to assist agencies to meet FOI deadlines (by narrowing the scope of requests or agreeing to extensions of time) where agencies have communicated the difficulties they face in finalising requests in a timely manner. By contrast, applicants may be unhappy and complain about delay if an agency approaches the OAIC for an extension without first consulting the applicant. Even where a request is complex or voluminous and an extension could be sought under s 15AB, the OAIC encourages agencies to speak first to applicants about the reasons why further time is required to process requests.

In deciding whether to grant an extension, the OAIC takes account of the impact this might have on an applicant; this can be influential though not determinative. This was an element in the following case study of an agency engaged constructively with an applicant before applying for an extension.

Case study: Extension of time negotiation pays off

An agency sought an extension of time of 30 days from the OAIC under s 15AB on the basis that the request was complex or voluminous. This was the second s 15AB extension applied for in relation to the same request. The FOI applicant had previously opposed the granting of extensions of time for other FOI requests (including similar requests made to other agencies).

The OAIC granted the extension request without needing to obtain further information from the agency or consult with the FOI applicant. The request set out the progress that had been achieved since the earlier extension of time request, including a significant narrowing of scope of the FOI request, action being taken to resolve the complexity of the request and, significantly, evidence of the applicant's agreement to the extension of time.

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Responding to enquiries

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. Information about calls received by the Enquiries Line relating to matters other than FOI is in chapter 5.

Who is calling?

The majority of callers were individuals, followed by agencies seeking advice on FOI. Table 3.5 sets out the 'top ten' caller types:

Table 3.5 – Top ten 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, vets) 2

Table 3.6 provides a breakdown of issues discussed in the calls received during 2010–11.

Table 3.6 – Breakdown of Issues in FOI Calls Received
Issue discussedTotal
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.

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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.

The Information Commissioner has performed these functions by:

  • publishing an IPS Discussion Paper for public consultation
  • conducting consultation sessions with agencies on the IPS and associated accessibility issues
  • publishing a draft version of the OAIC's information publication plan for public consultation
  • publishing a self-assessment checklist for agencies which sets out the key compliance requirements of the IPS
  • publishing Guidelines on the IPS
  • publishing an IPS Compliance Program with information about how the Information Commissioner intends to assist agencies in their review of the IPS
  • responding to individual agency requests for information and advice.

The OAIC published its contribution to the IPS on its website by 1 May 2011. For further information on the OAIC's IPS, see Appendix 5.

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Disclosure log

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.

The OAIC published a disclosure log webpage on its website by 1 May 2011. There were no FOI releases made by the OAIC in 2010–11 that met the criteria for publication in the disclosure log.

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FOI Guidelines

The Australian Information Commissioner issued guidelines under s 93A of the FOI Act to which ministers and agencies must have regard when performing functions and exercising powers under the FOI Act. The Guidelines outline the important amendments that were made to the FOI Act in 2010 and provide guidance to agencies and ministers on FOI administration. The Guidelines are not a legislative instrument (s 93A(3)).

Consultation drafts were made available to agencies for comment via govdex (www.govdex.gov.au). The Guidelines were progressively issued under s 93A of the FOI Act from 24 December 2010. As at 30 June 2011, the following parts of the guidelines were 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

The Guidelines will be updated from time to time to take account of the Information Commissioner's decisions 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.

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Fact sheets

The OAIC has developed Fact Sheets to assist the public in using the FOI Act. The following fact sheets were published in 2010–11:

  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

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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: a summary 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 FOI Act 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 FOI Act. This guidance also aims to assist agencies to comply with their obligations under s15(3) of the FOI Act to take reasonable steps to assist any person who wishes to make an FOI request

  • Guide to the quarterly and annual FOI Act statistical returns to the OAIC.

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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 FOI Act 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 FOI Act, the Archives Act 1983 and the Privacy Act 1988
  • authorisations and delegations under the FOI Act.

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Footnotes

[1] Australian Law Reform Commission and Administrative Review Council, Open government: A review of the federal Freedom of Information Act 1982, ALRC Report No 77/ARC Report No 70, 1995.

[2] Commonwealth Ombudsman Annual Report 2009–10, page 83. Note, however, that the scope of Information Commissioner complaints is narrower than were Ombudsman FOI complaints, which included complaints about the merits of FOI decisions.

[3] Commonwealth Ombudsman Annual Report 2009–10, page 83.

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