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Message from the Freedom of Information Commissioner, Dr James Popple

Portrait photo of James Popple2011–12 was the first full year of operation of the 2010 reforms to the Freedom of Information Act 1982 (FOI Act): reforms intended to strengthen open government. By the end of the reporting period, the new FOI regime had been in operation for 20 months; the Information Publication Scheme (IPS) for 14 months.

I believe that the reforms have been successful. The material in this annual report supports this view. It is easier, and cheaper, to access documents and government information than it was before the reforms. People are generally aware of their rights under the FOI Act. Most agencies and ministers have demonstrated an understanding of their obligations under the Act to facilitate and promote public access to information, promptly and at the lowest reasonable cost. Many parts of government have embraced the Act's objective: promoting Australia's representative democracy by increasing public participation in government processes and increasing scrutiny, discussion, comment and review of government actions.

However, some agencies have made decisions, or dealt with FOI applicants, in ways that are at odds with the pro-disclosure culture that the FOI Act promotes and requires. The OAIC received 126 FOI complaints during 2011–12, and finalised 100. Agencies' delay in processing FOI applications was the issue most frequently raised. Many complaints can be avoided through improved communication between the agency and the FOI applicant: focusing the scope of the FOI request so that it can be processed in a timely manner, and keeping the applicant informed of progress.

Agencies do not always take reasonable steps to assist applicants to make their FOI requests, as agencies are required by the Act to do. On the other hand, some agencies have demonstrated a reluctance to use the practical refusal provisions in the Act in circumstances where processing the FOI request would substantially and unreasonably divert the agency's resources from its other operations. This otherwise admirable reluctance can cause difficulties. This is especially so if the agency makes no attempt to engage with the applicant to reduce the scope of the FOI request, or does not come to grips with the request until after it has been deemed by the Act to have been refused.

The information presented in this Annual Report reflects high levels of activity across the FOI system in 2011–12:

  • Australian Government ministers and agencies received 24,764 FOI requests, an increase of 4.9% on the previous year.
  • The number of requests for personal information, which comprised 80.7% of all requests, increased by 2.5%.
  • The number of requests for other than personal information increased by 16.4%. Requests of this type are typically more complex and require more agency resources to process.
  • Access was granted, in full or in part, in 88.4% of all FOI requests determined, a decrease of 2.2%.
  • The number of FOI requests that agencies had on hand (that is, requests upon which a decision had not been made) at the end of the year decreased by 14.9%.
  • Ministers and agencies received 5.0% fewer applications for amendment of personal records. Only 10 agencies received amendment applications, and one agency (the Department of Immigration and Citizenship) received more than 99% of those.
  • Agencies made 1.0% more decisions on internal review than in the previous year, and affirmed the original decision in 48.4% of those reviews, an increase of 2.1%.
  • The reported cost attributable to agency compliance with the FOIAct was $41.719m, an increase of 14.9% on the previous year. Afurther $3.798m was reported as the cost of compliance with the IPS.

The OAIC continued to promote awareness and understanding of the FOI Act and its objects. It did this through the Information Commissioner's guidelines; through other publications designed for agencies, ministers and applicants; through its enquiries line; through its training of agencies; through its dealings with agencies seeking extensions of time; and through various presentations to, and consultations with, the community and with government.

The OAIC also continued — and refined — its approach to performing its FOI merits review function. Wherever possible, IC reviews are conciliated; if conciliation is not possible, the IC review is finalised by a written decision of one of the Commissioners. The conciliation process can be time-consuming, but it is frequently successful. Sometimes, as a result of conciliation, an agency will agree to release some of the documents in dispute.

Sometimes an IC review applicant is satisfied if the OAIC examines the documents in question, and takes the preliminary view that the agency correctly applied the FOI Act in making its decision. In the majority of those IC reviews that were finalised by a written decision, the agency or minister's decision was affirmed. These outcomes suggest that the quality of agency decision making on FOI requests is generally high.

Processing IC reviews continues to strain the resources of the OAIC. The OAIC received 456 applications for IC review in 2011–12 and finalised 253; 25 of which were concluded through written decisions. The OAIC took several steps to improve its efficiency in processing IC reviews and, in the last two months of the reporting period, the finalisation rate more than tripled.

A full year of operation of the new FOI regime has brought to light a number of technical deficiencies in the FOI Act, in provisions dealing with (for example) charges, third party consultation, extensions of time and IC review of practical refusal decisions. The OAIC will raise these issues for consideration in the statutory review of the FOI Act to be conducted in 2012–13. I believe that addressing these deficiencies would make the FOI regime even more effective, and allow government information-recognised by the Act as a national resource-to be even better managed for public purposes.