Office of the Australian Information Commissioner - Home

Australian Government - Office of the Australian Information Commissioner
Australian Government - Office of the Australian Information Commissioner

Main menu

Chapter Eight — Freedom of information compliance and policy

Overview

This chapter reports on the Office of the Information Commissioner’s (OAIC) freedom of information (FOI) compliance and policy activities. This chapter and Chapter 9 report on ‘freedom of information matters’ for 2011–12, as required by ss 30(3)(a) and 31 of the Australian Information Commissioner Act 2010.

2011–12 was the first full year of operation for the reforms to the Freedom of Information Act 1982 (FOI Act) that commenced in November 2010. The OAIC undertook a range of activities to monitor compliance with the FOI Act by agencies and ministers and provide policy advice and guidance. These activities included responding to 1610 enquiries, and finalising 253 applications for Information Commissioner review (IC review), 100 FOI complaints, and 2237 notifications and extension of time requests. The Australian Information Commissioner also initiated an own motion investigation (OMI) into the Department of Immigration and Citizenship’s (DIAC) handing of complex and sensitive FOI requests.

The OAIC also provided a range of advice on FOI matters, including the publication of two new parts of the guidelines issued by the Information Commissioner under s 93A of the FOI Act (the Guidelines), 13 agency resource sheets and a range of other guidance.

Back to Contents

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 2011–12, the enquiries line received 21,317 telephone calls, 977 of which specifically related to FOI. The OAIC’s enquiries line also responds to written enquiries sent to the OAIC, whether received by post, email or fax. Information about calls received by the enquiries line relating to matters other than FOI can be found in Chapter 6.

The majority of FOI questions asked of enquiries line staff were asked by Australian Government agencies. This may indicate that the public is not yet fully aware that staff on the OAIC enquiries line can provide general information about FOI matters. It may also indicate that agencies are still learning about the changes brought about by the FOI reforms of 2010.

Table 8.1 below sets out the types of enquirers who sought information from the enquiries line about FOI in 2011–12. This table includes information on both written and telephone enquiries.

Table 8.1 Types of FOI enquirers
Enquirer typesTotal number of enquiries
Australian Government 847
Individual 681
Legal, accounting and management services 17
Unknown 11
Government — State 10
Business, professional associations and unions 10
Media 8
Health service providers 6
Charities 3
Finance (including superannuation) 3
Clubs, interest groups, theatres and sports 2
Personal services (including employment, child care, vets) 2

Table 8.2 provides a breakdown of the types of enquiries made to the OAIC during 2011–12. The data in the table reflects that Australian Government agencies contacted the OAIC enquiries line for advice in relation to FOI matters more often than did individuals. Twenty-six per cent of all calls about FOI matters related to agency statistical reporting requirements and 26.2% related to processing by an agency. This table includes statistics on both written and telephone enquiries.

Table 8.2 Breakdown of issues in FOI enquiries received
IssueTotal number of enquiries
General processes 616
Processing by agency 422
Agency statistics 419
Information Publication Scheme 61
Access to general information 41
Access to personal information 34
Amendment and annotation 14
Vexatious application 3

Back to Contents

Reviewing FOI decisions

The FOI Act provides that an FOI applicant who disagrees with an FOI decision can apply directly to the Information Commissioner as an alternative to, or after, internal review by the agency. 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.

The IC review can be undertaken by the Information Commissioner, the Freedom of Information FOI Commissioner or the Privacy Commissioner.

IC review provides a simple, practical and cost-efficient system of external merits review. IC review is a form of merits review: the Commissioner does not simply consider the reasons given by the agency or minister, but determines the correct or preferable decision in all the circumstances. During the reporting period, all IC reviews were conducted on the papers rather than through formal hearings. Part 10 of the Guidelines details the process that the OAIC follows for IC reviews.

In determining an IC review application, the Commissioner has power to affirm, vary or set aside the 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 are finalised without a decision by the Commissioner. Applications may be resolved by agreement either formally (when the agreement is in terms that are within the powers of the Information Commissioner) or informally (where the applicant chooses to withdraw their IC review application).

A Commissioner’s decision on IC review may be reviewed by the Administrative Appeals Tribunal (AAT), on the application of a party to the IC review. In 2011–12, the Information Commissioner received 456 applications for IC review, raising 909 review issues. In 432 applications (or 94.7% of all applications), IC review applicants sought review of access refusal decisions (including decisions on charges or amendment of personal records); 24 applications (5.3%) were for review of access grant decisions.

Table 8.3 shows the outcome for all IC review applications finalised in 2011–12. Two hundred and fifty-three applications for IC review were finalised. Twenty-five were concluded through published decisions by the Information Commissioner, the FOI Commissioner or the Privacy Commissioner. Agency decisions were affirmed in 17 of those published decisions (68.0%), and set aside in eight.

Table 8.3 Information Commissioner reviews by outcome
Information Commissioner decisionNumber
s 54N — out of jurisdiction 27
s 54N — invalid 13
s 54R — withdrawn 108
s 54W(a)(i) — lacking in substance 42
s 54W(a)(ii) — failure to cooperate 5
s 54W(a)(iii) — lost contact 9
s 54W(b) — refer to AAT 22
s 55F — varied by agreement 2
s 55K — affirmed by IC 17
s 55K — set aside by IC 8
s 55K — varied by IC 0
Total 253

Thirteen IC review applications were identified as invalid in 2011–12. The reasons for invalidity included that the FOI request to which the IC review application related was made before 1 November 2010 (when the legislation providing for IC reviews commenced), the agency was yet to make a reviewable decision, or the IC review applicant had failed to provide the OAIC with a copy of the decision for which review was sought (a requirement in s 54N(1)(b) of the FOI Act). In each case, consideration was given to whether the OAIC could assist the applicant to make a valid review application or whether the applicant’s concerns could usefully be responded to as a complaint or an enquiry.

In 27 applications, IC review applicants sought review of decisions that fell outside of the jurisdiction of the OAIC. In some cases applicants sought review of FOI decisions made by state government agencies; in others, review was sought of matters that did not arise under the FOI Act: for example, a decision to grant or refuse an immigration visa application.

Two IC reviews were formally resolved through agreement between the parties. The OAIC encourages resolution by agreement between the parties. This is particularly useful when the decision for which IC review is sought is a deemed decision or turns on the exercise of a discretion to impose a charge. Many disputes can arise from a misunderstanding between the parties, including issues underlying the FOI request, and the IC review process can be a catalyst for reopening communication and resolving the dispute. In some cases where the dispute is resolved, and the applicant is satisfied with the outcome, the applicant may withdraw their IC review rather than arranging for it to be formally resolved by agreement. The OAIC has started collecting this information, and will be able to disaggregate the number of withdrawn IC reviews — those conciliated and those not — in future annual reports.

One of the OAIC’s deliverables (see Chapter 2) is to finalise 80% of all IC review applications within six months of receipt. In 2011–12, only 32.8% were finalised within six months.

Chart 8.1 shows the number of IC reviews received by the OAIC from commencement of operation in November 2010 until 30 June 2012. The darker sections of each bar indicate the number of IC reviews received in each month and still on hand at 30 June 2012.

Chart 8.1: IC reviews received by month

Link to long text description follows image.

Since early in its operation, the OAIC has had a backlog of IC reviews on hand: that is, not finalised. On 30 June 2012, the OAIC had 357 IC reviews on hand: 56% of the total number of IC reviews received since November 2010. During the reporting period, the OAIC took a number of steps to improve its efficiency in dealing appropriately with IC reviews. These steps produced some measurable improvements. At the end of April 2012, the OAIC was finalising, on average, 0.56 IC reviews a day; by the end of June 2012 the finalisation rate had risen to 1.77.

Details of the agencies against which IC reviews were received in 2011–12 are given in Chapter 9.

Back to Contents

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. 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 merits of an FOI access refusal or grant decision will usually be treated as an application for IC review, if this option is available.

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.

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

Part 11 of the Guidelines details the process that the OAIC follows in investigating complaints.

The OAIC received 126 FOI complaints in 2011–12. One hundred complaints were finalised.

One of the OAIC’s deliverables (see Chapter 2) is to finalise 80% of all FOI complaints within 12 months of receipt. In 2011–12, 88.1% were finalised within 12 months.

The Commonwealth Ombudsman has power to investigate FOI matters when it would be more appropriate or effective (for example, where the FOI complaint is only one part of a wider grievance about the agency’s actions). For further information, see Chapter 9.

Table 8.4 lists the respondent agencies against which two or more complaints were made during 2011–12.

Table 8.4 Respondent agencies with two or more complaints
AgencyComplaints received
Department of Human Services 23
Department of Immigration and Citizenship 17
Australian Securities and Investments Commission 11
Australian Taxation Office 7
Australian Federal Police 5
Commonwealth Ombudsman 5
Department of Defence 5
Department of Foreign Affairs and Trade 5
Department of the Prime Minister and Cabinet 5
Australian Customs and Border Protection Service 4
Attorney-General’s Department 3
Department of Education, Employment and Workplace Relations 3
Department of Health and Ageing 3
Australian Communications and Media Authority 2
Australian Postal Corporation 2
Department of Infrastructure and Transport 2

As is the case with IC reviews, the agencies against which the most complaints were received in 2011–12 are the agencies which process the largest number of FOI requests.

Table 8.5 lists the issues raised in complaints. The total number of issues is more than the number of complaints received, because a complaint may raise more than one issue.

The most frequently raised issue in FOI complaints in 2011–12 was processing delay (in 65 complaints or 51.6% of all complaints received). Many complaints about timeliness could be avoided if agencies maintained open and regular communication with FOI applicants, helping them to focus the scope of their FOI request so 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 agencies face in processing requests.

Table 8.5 Issues raised in complaints received in 2011–12
IssueNumber of complaints
Processing delay 65
Unsatisfactory customer service 18
Agency failure to acknowledge request 17
Incorrect application of law 17
Inadequate searches 12
Agency failure to assist with application 10
Unsatisfactory reasons for decision 9
Information Publication Scheme 8
Processing error 4
Administrative deficiency 2
Incorrect calculation of charge 1
Inadequate explanation of charge 1
Total 164

Many disputes about timeliness involved poor communication on the part of an agency that failed 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 when processing FOI requests, both when complaints arise, and through 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 (18 complaints). Dealing with complaints that fell into this category often involved investigating whether an agency took reasonable steps to assist the applicant to make their FOI request, as agencies are required to do by s 15(3) of the FOI Act.

An emerging complaint issue in 2011–12 was the failure of some agencies to send a letter acknowledging receipt of a person’s FOI request as required by s 15(5)(b) of the FOI Act (17 complaints). An acknowledgement letter confirms the date on which the request was received, and therefore, the date on which the 30-day processing period expires. An FOI applicant has review rights if an agency fails to decide their request within the statutory timeframe.

Incorrect application of the law was raised as an issue in 17 complaints received in 2011–12. However, most of these matters fell outside the jurisdiction of the office because the agency complained about was not an Australian Government agency or a prescribed authority under the FOI Act, or the issue complained about was not an FOI issue. Misunderstanding about the scope and operation of the FOI Act appears to be the reason for the majority of this kind of complaint.

The 100 complaints closed in 2011–12 raised 137 issues. Table 8.6 indicates the way those 137 complaint issues were finalised.

Table 8.6 Method for finalising complaint issues
Closure methodNumber of complaints
s 70 — not in jurisdiction 17
s 73(a) — complaint not in jurisdiction 10
s 73(b) — complainant has right to cause action to be reviewed by other body 4
s 73(d)(i) — agency adequately dealt with complaint 17
s 73(d)(i) — agency is currently dealing with complaint 10
s 73(e) — complaint frivolous, vexatious, lacking in substance 20
s 86 — notice of investigation outcomes provided to agency 15
Complaint withdrawn 41
Complaint conciliated and withdrawn 3

Forty-four complaint issues were withdrawn by the complainant. The OAIC has commenced collecting information about which of the withdrawn complaints were conciliated. Three complaint issues were withdrawn following action by the OAIC to conciliate between the complainant and the agency and, as a result, further investigation was not needed.

The case study on the following page demonstrates how the OAIC resolved a complaint without conducting a formal investigation. As a result of the action taken by the office the complainant withdrew their complaint.

Back to Contents

Own motion investigations

The Information Commissioner may undertake an own motion investigation (OMI), which may consider a single agency action or a systemic or recurring issue in an agency’s FOI practices and processes.

In 2011–12, the Information Commissioner initiated an OMI into the Department of Immigration and Citizenship’s (DIAC) handling of complex and sensitive FOI requests. This investigation was not finalised at the end of the reporting period.

Back to Contents

Extensions of time

The FOI Act sets out timeframes within 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 refusing the request and the FOI applicant can apply for IC review of the decision.

The FOI Act also provides that an FOI charge cannot be imposed if a decision is not reached within the statutory timeframe. An applicant can agree in writing to extend the timeframe for a further 30 days. The Information Commissioner must be notified of any such agreement.

The Information Commissioner can grant an extension of time to enable an agency or minister to process a complex or voluminous FOI request, or when 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 Information Commissioner can also grant an extension of time to apply for IC review of an access refusal or access grant decision. The time limit for applying for IC review is 60 days for access refusal decisions and 30 days for access grant decisions.

During 2011–12, the OAIC finalised 2237 notifications and extension of time requests. 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 good communication by agencies with the OAIC and applicants.

Table 8.7 shows the number of notifications and extension of time requests finalised in 2011–12 and the outcomes for these.

Table 8.7 Notifications and extension of time requests finalised
Request typeGranted or acknowledgedGranted but variedGranted with conditionsNot grantedInvalid requestWithdrawnTotal number of requests
s 15AA — agreement between agency and applicant 1478 0 0 0 2 1 1481
s 15AB — OAIC approval — complex or voluminous request 303 44 0 9 9 53 418
s 15AC — OAIC approval — deemed refusal of FOI request 158 12 31 8 5 35 249
s 51DA — OAIC approval — deemed refusal of request to amend personal record 3 0 0 0 0 1 4
s 54D — deemed affirmation of original decision on internal review 45 2 1 2 4 1 55
s 54T — OAIC extension to apply for IC review 19 0 0 6 2 3 30
Total 2006 58 32 25 22 94 2237

Notifications and extension of time requests fall into four categories:

  • An agency notifies the OAIC of an agreement it has made with an applicant under s 15AA of the FOI Act. 1481 (or 66.2%) of the notifications and extension of time requests finalised in 2011–12 were of this kind. In these cases, the OAIC registers the notification and acknowledges receipt to the agency. In one case the notification was subsequently withdrawn. Two notices were determined to be invalid because the extension agreements occurred after the requests had been deemed to be refused. The OAIC does not routinely scrutinise the validity of s 15AA notifications, this scrutiny occurs if an agency subsequently applies to the OAIC for a further extension of time, or in an IC review when the date of the agency’s actual or deemed decision is at issue.
  • An agency seeks an extension of processing time, under s 15AB of the FOI Act, on the basis that the statutory timeframe is insufficient to deal with the request because the request is complex or voluminous. The OAIC finalised 418 such applications in 2011–12. 303 of these (72.5%) were granted for the period of time sought by the agency. Forty-four applications (10.5%) were granted but for a lesser period than the agency sought. Nine applications (2.2%) were not granted.
  • An agency seeks an extension of processing time, under ss 15AC, 51DA or 54D of the FOI Act, where it has been deemed to have refused the request because it has exceeded the time given under the FOI Act. The OAIC finalised 308 such applications in 2011–12. 206 of these (66.9%) were granted for the period of time sought by the agency. Forty-six applications (14.9%) were granted but with conditions or for a lesser period than the agency sought. Ten applications (3.2%) were not granted.
  • A person seeks an extension, under s 54T of the FOI Act, of the 60-day time period within which to apply for IC review. The OAIC finalised 30 such applications in 2011–12. Nineteen of these (63.3%) were granted.

The extension of time provisions are an important new feature of the FOI Act introduced in 2010. They put pressure on agencies to process FOI requests within the statutory timeframes and 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 encourages 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) when 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 of time without first consulting the applicant. Even when a request is complex or voluminous and an extension could be sought under s 15AB, the OAIC encourages agencies to first speak 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. However, while this can be influential it is not determinative.

Back to Contents

Case study – Resolution of a complaint

A journalist complained that an agency had published documents on its disclosure log relating to an FOI request he had made, before he received the agency documents.

The agency informed the OAIC that it was not its standard practice to publish documents on the disclosure log at the same time as those documents were sent to the FOI applicant. In this case the documents had been mistakenly loaded to the disclosure log on the same day they were posted (by Express Post). The agency acknowledged that the complainant did not receive the documents until two days after they had been made publicly available on the agency’s website.

The agency undertook to review its processes to ensure that, in the future, documents are not placed on the disclosure log before they are made available to the FOI applicant. The agency also said that it had a standard practice of providing documents to FOI applicants by post but would now do so electronically, upon request, and had sought advice from its information technology area about how to facilitate electronic access to documents more efficiently.

In response to this and other complaints about disclosure log publication, the Information Commissioner revised Part 14 of the FOI Guidelines to list matters that should be considered by agencies when deciding the date of disclosure log publication. The issue has also been noted as an issue that could be considered during the review of the operation of the FOI Act, to be conducted in 2012–13 under s 93B of the FOI Act.

The complainant was satisfied with this outcome and withdrew his complaint.

Back to Contents

Vexatious applicant declaration requests

The Information Commissioner has power to declare a person to be a vexatious applicant if satisfied that the grounds set out in s 89L of the FOI Act 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 AAT. Part 12 of the Guidelines provides guidance on such declarations.

During 2011–12, the Information Commissioner received four applications from agencies, under s 89K, seeking to have a person declared a vexatious applicant. These applications were not finalised by the end of the reporting period.

Back to Contents

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.

Agencies are encouraged to publish additional information beyond that required by the FOI Act. The IPS underpins a pro-disclosure culture in government, marked by proactive release and publication of government information. This requires a strong commitment by agencies to implement the IPS and develop it over time as a valuable public resource.

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 in 2011–12 by:

  • participating in agency round-table discussions on IPS and associated accessibility issues
  • updating the Guidelines on the IPS
  • undertaking the first IPS Survey
  • responding to individual agency requests for information and advice.

The OAIC published its own contribution to the IPS on its website by 1 May 2011. For further information on the OAIC’s IPS, see Appendix 3.

The FOI Act reinforces the pro-disclosure culture in government by requiring each agency to complete a review of the operation of the IPS within five years of its commencement. This review must be conducted in conjunction with the OAIC.

In May 2011, the OAIC launched a compliance strategy comprising three elements: an agency self-assessment checklist; an IPS survey of Australian Government agencies, to be conducted in 2012 and 2014; and a desktop review program of agency websites to be undertaken by the OAIC between 2012 and 2016.

The first IPS Survey was undertaken on behalf of the OAIC in April 2012 by ORIMA Research. 245 agencies were invited to take part in the online survey. A total of 191 agencies took part: a strong response rate of 78%. Agencies were assessed against five key criteria set out in the Guidelines. A report of the results was prepared by ORIMA. Preliminary results indicate that agencies comply positively with most of the five key IPS criteria, with 94% of agencies reporting that they had published an Agency IPS plan and more than 85% of agencies publishing each of the required types of information on their website. The report will be published on the OAIC website. The OAIC will use the survey data as a baseline to measure compliance improvements in the 2014 survey.

Back to Contents

Disclosure log

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

The Information Commissioner assisted agencies, ministers and the public to understand the disclosure log requirements by updating the 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 on 1 May 2011. During 2011–12 four items were added to the OAIC’s disclosure log, including instruments of delegation, submissions made in relation to the review of the Privacy Act 1988 (Privacy Act), procedures manuals and a document containing the OAIC’s consideration of the National Privacy Principles (NPPs).

Back to Contents

Assisting agencies

One of the OAIC’s important roles is in assisting agencies that are subject to the FOI Act to comply with their obligations under the Act. Details of agency FOI activities are given in Chapter 9. However, there have been some examples of agency activity during the reporting period that are at odds with the pro-disclosure culture that the FOI Act promotes and requires.

In June 2011, the FOI Commissioner issued DIAC with a formal notice to produce a statement of reasons under s 55E of the FOI Act by 27 July 2011. DIAC did not respond to the notice until 12 August 2011. DIAC’s response necessitated a further notice to produce documents under s 55R. As noted above, the Information Commissioner initiated an OMI into DIAC’s handling of complex and sensitive FOI requests during the reporting period.

In May 2012, the FOI Commissioner raised concerns with the Department of Foreign Affairs and Trade (DFAT) about its approach to consultation in a particular matter. An FOI applicant had sought IC review because DFAT had not made a decision within the statutory timeframe and, therefore, was deemed to have refused his application. In response to enquiries from the OAIC, DFAT advised that it was not in a position to make a decision on the FOI application until it had received advice from a foreign government, which it had consulted about the documents sought. It was then 18 months since the FOI application had been made.

The FOI Act allows for additional time to be taken by agencies to undertake consultation with foreign entities and other affected third parties before making a decision about the application of exemptions (see, for example, ss 15(7) and (8)). This includes deciding whether a document is exempt because, for example, its disclosure would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth (s 33(a)), or would divulge information communicated in confidence by a foreign government (s 33(b)). However, the FOI Act does not require that an agency receive submissions from a third party before making a decision in these circumstances. If the third party takes an inordinately long time to make its submissions, or makes no submission, the obligation to make the decision, within the timeframes set out in the Act, remains upon the agency. As the Guidelines explain, if a third party is consulted, they should be advised that if a response is not received within the specified timeframe the agency will assume they do not object to release of the documents.[5]

Guidelines issued under s 93A of the FOI Act

Agencies must have regard to Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act when they are performing a function or exercising a power under that Act. The Guidelines provide guidance to agencies and ministers on FOI administration and on how the Information Commissioner interprets and applies the FOI Act.

The Information Commissioner has issued the Guidelines progressively, since 24 December 2010. During 2011–12, the OAIC published the final two parts: Part 3 (Processing requests for access) and Part 8 (Decisions on FOI requests).

Other parts of the Guidelines were updated in 2011–12 to reflect legislative changes and IC review decisions. The Information Commissioner substantially revised Part 14 (Disclosure log) to provide further detail about disclosure log requirements and to update references to guidance (from other agencies) that had been superseded. These, and amendments to other parts, are outlined in a table of links to archived versions of the Guidelines available on the OAIC website. That table also summarises significant changes between each version of the Guidelines.

The Guidelines will continue to be updated periodically to take account of IC review decisions, relevant decisions of the AAT and Federal Court, and other relevant legislative and other developments affecting the operation of the FOI Act.

Agency resources

In 2011–12, the OAIC published a series of agency resources to assist agencies in applying the FOI Act. The resources were developed to present key areas of the FOI Act in a clear and easy to understand format. The agency resources are advisory only and are not legally binding on agencies. They are available at the OAIC’s website.

The following resources were published in 2011–12:

  1. Twelve tips for FOI decision makers
  2. Calculating and imposing charges for FOI access requests
  3. Processing requests for amendment and annotation of personal records
  4. Key amendments to exemption provisions under the FOI Act
  5. Summary of exemptions under the FOI Act
  6. Making a decision on an FOI access request
  7. Statement of reasons checklist
  8. Review of decisions made under the FOI Act
  9. Complaint and own motion investigations under the FOI Act
  10. Internal review
  11. Sample FOI notices
  12. Defining an agency
  13. Extension of time for processing requests.

Other guidance material

The OAIC published other guidance material in relation to its FOI functions, also available at its website, including:

  • Guide to the Freedom of Information Act 1982 — A guide explaining the foundational principles of FOI, the place of FOI within the broader framework of government information policy, and the concept of ‘open government’. The Guide also provides a detailed summary of the FOI Act.
  • Redaction and freedom of information — Guidance for agencies on how to completely and irrevocably delete exempt material from electronic documents while meeting accessibility requirements.
  • Public holidays and agency shut-down periods — Calculating timeframes under the Freedom of Information Act 1982 — Guidance for agencies on how to calculate processing periods under the FOI Act taking into account public holidays, particularly the period of time between Christmas and the New Year when most Australian Government agencies shut down operations.
  • Guide to the quarterly and annual FOI Act statistical returns to the OAIC.

Disclosure log determination

Section 11C(2) of the FOI Act allows the Information Commissioner to make a determination about cases where it would be unreasonable for agencies or ministers to publish information on the disclosure log. In September 2011, the Information Commissioner issued Disclosure Log Determination No. 2011–1 (Exempt Documents), which came into effect for two years from 17 October 2011. The scope of the determination makes it unreasonable for agencies and ministers to publish on their disclosure log:

  • information in a document that was an exempt document at the time that access was given by the agency or minister to the applicant
  • information in a document that the agency or minister would have decided was an exempt document at the time that access was given to the applicant, if the request for that document had been received from a person other than the applicant.

FOI advice provided

The OAIC provided advice to agencies and the public on the operation of the FOI Act, including on:

  • charges — their effect on processing periods, the possibility of applying a higher charge than the preliminary assessment notified to the applicant
  • the meaning of key terms under the FOI Act
  • the interaction of the FOI Act with other Acts such as the Privacy Act, the Archives Act 1983 and the Corporations Act 2001
  • third party consultation and review rights
  • the IPS and the disclosure log
  • access to a database and release of documents in electronic format
  • practical refusal
  • processing periods and extensions of time
  • the commencement of the processing period
  • exemptions and conditional exemptions
  • deferral of access
  • authorisation of decision makers under the FOI Act
  • agency reporting obligations.

Back to Contents

Assisting the public

The OAIC has published a range of materials to assist the public in understanding the FOI process and the OAIC’s role and functions. All of this information is available on the OAIC website, including:

  • general information about the OAIC and FOI process
  • information about how to seek IC review (including an online IC review application form)
  • information on how to make an FOI complaint to the OAIC (including an online complaint form)
  • 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 (ICON) meetings
  • speeches on FOI by the Commissioners.

During 2011–12, the OAIC produced a new fact sheet: FOI Fact Sheet 15 — Freedom of information and Norfolk Island. This fact sheet explains that the FOI Act gives individuals the right to request access to documents held by Norfolk Island government agencies and certain documents of Norfolk Island ministers.

Back to Contents

Other developments

Amendment of the FOI Act and Regulations

During the reporting period, only one consequential amendment of the FOI Act was made.

The Parliamentary Service Amendment (Parliamentary Budget Officer) Act 2011 came into force on 12 February 2012. It amended Schedule 2 of the FOI Act to list both the Parliamentary Budget Officer and the Parliamentary Budget Office as exempt agencies. This means that these Parliamentary agencies are entirely exempt from the operation of the FOI Act.

There were no amendments of the regulations made under the FOI Act during the reporting year.

Review of charges under the FOI Act

In 2011–12, the Information Commissioner carried out a review of charges under the FOI Act and reported to the Attorney-General in February 2012. The review included consultation with applicants and agencies about the impact of the current charging regime on the operation of the Act.

The report put forward four principles to underpin a new FOI charging framework:

  • Support of a democratic right — FOI supports transparent, accountable and responsive government. A substantial part of the cost should be borne by government
  • Lowest reasonable cost — no one should be deterred from requesting government information because of costs, particularly personal information that should be provided free of charge. The scale of charges should be directed more at moderating unmanageable requests.
  • Uncomplicated administration — the charges framework should be clear and easy for agencies to administer and applicants to understand. The options open to an applicant to reduce the charges payable should be readily apparent.
  • Free informal access as a primary avenue — the legal right of access to documents is important, but should supplement other measures adopted by agencies to publish information and make it available upon request.

Report recommendations involved measures to:

  • encourage administrative access schemes to facilitate free, fast and informal access to government information without requiring applicants to make use of the FOI Act to frame a request for a particular document
  • reduce the current range of access charges to a more manageable level, and keep access to personal information free of charge
  • impose FOI processing time and charges ceilings — a maximum processing charge of $50 on requests processed within 10 hours, a maximum processing charge of $950 for all requests, and a discretionary ceiling of 40 hours processing time, beyond which an agency or minister could refuse to process an FOI request following consultation with the applicant
  • simplify the current charging reduction and waiver provisions under the Act
  • encourage applicants to seek internal review by an agency as a first resort rather than review by the Information Commissioner when seeking review of an FOI access decision
  • introduce a new approach to reducing charges in cases where a decision has not been provided within the required timeframes
  • introduce indexation of charges under the Act
  • introduce new timeframes for responding to charging notices.

The review report, which is currently under consideration by the Attorney-General, is available at the OAIC website.

Review of NBN Co. Ltd compliance with FOI

On 16 April 2012, the Attorney-General announced a statutory review of the application of the FOI Act to NBN Co. Ltd. The Government appointed Stuart Morris QC to conduct the review. The Freedom of Information Commissioner met with Mr Morris in May 2012, and provided some information to the review about the OAIC’s interactions with NBN Co. Ltd.

Application of the FOI Act to the Parliamentary departments

When the legislation establishing the Parliamentary Budget Office was introduced, a question was raised about the application of the FOI Act to the other Parliamentary departments: the Department of the House of Representatives, the Department of the Senate and the Department of Parliamentary Services.

For years it had been assumed that the FOI Act did not apply to the Parliamentary departments, and that was probably the case up until 1999. However, when the Parliamentary Service Act 1999 was enacted, those departments became subject to the FOI Act. This is because they were established by, or in accordance with, s 54 of the Parliamentary Service Act. This makes each of them ‘an unincorporated body, established for a public purpose by, or in accordance with the provisions of, an enactment’ and therefore a ‘prescribed authority’ for the purposes of the FOI Act. It is possible that the application of the FOI Act to the Parliamentary departments since 1999 was unintentional, or at least inadvertent.

In December 2011, the FOI Commissioner met with the Clerks of the House and the Senate, and officers of the Department of Parliamentary Services, and advised them that the FOI Act applies to their departments. In May 2012, following some correspondence between those departments and the OAIC, the Information Commissioner amended the Guidelines to reflect the fact that the Act applies to the Parliamentary departments.

Back to Contents

Footnotes

[5] Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982, [8.77].

Back to Contents

Long text descriptions

Chart 8.1

The chart shows the number of IC reviews received each month and still open at 30 June 2012.

MonthIC reviews receivedIC reviews still open
November 2010 3 0
December 2010 6 0
January 2011 6 0
February 2011 24 5
March 2011 33 9
April 2011 25 3
May 2011 45 25
June 2011 36 14
July 2011 35 13
August 2011 33 20
September 2011 61 28
October 2011 47 25
November 2011 40 21
December 2011 36 25
January 2012 34 24
February 2012 27 22
March 2012 35 30
April 2012 30 26
May 2012 48 36
June 2012 30 27

634 IC reviews have been received since November 2010, 280 have been closed and 354 remain open.

Back to Chart 8.1

Back to Contents