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Chapter Eight — Freedom of information policy and compliance

 Contents

  1. Overview
  2. Responding to FOI enquiries
  3. Reviewing FOI decisions
  4. FOI complaints and investigations
  5. Own motion investigations
  6. Investigation recommendations
  7. Extensions of time
  8. Vexatious applicant declaration requests
  9. Information Publication Scheme
  10. Disclosure log
  11. Assisting agencies
  12. Assisting the public
  13. Other developments

 Overview

2012–13 was the second full year of operation for the reforms to the Freedom of Information Act 1982 (FOI Act) that commenced in November 2010. The Office of the Australian Information Commissioner (OAIC) undertook a range of activities to monitor compliance with the FOI Act by agencies and ministers, and to provide policy advice and guidance.

These activities included receiving 2448 enquiries, and finalising 419 applications (65.6% more than in 2011–12) for Information Commissioner review (IC review), 149 freedom of information (FOI) complaints (49.0% more), and 2290 notifications and extension of time requests (2.4% more). The Australian Information Commissioner also completed 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 updating most parts of the Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (FOI Guidelines), several new fact sheets and agency resources and a range of other guidance.

 Responding to FOI enquiries

The OAIC enquiries line (1300 363 992) provides information about FOI issues and FOI law for the cost of a local call. In 2012–13, the enquiries line received 18,205 telephone calls, 1159 of which specifically related to FOI matters that were within the jurisdiction of the OAIC (18.6% more than in the previous year). A further 688 telephone calls were received about FOI matters that were out of jurisdiction.

The OAIC's enquiries line also responds to written enquiries sent to the OAIC, whether received by post, email or fax. Of the 3142 written enquiries received by the OAIC in 2012–13, 472 related to FOI matters that were within jurisdiction of the OAIC. A further 129 written enquiries were received about FOI matters out of jurisdiction.

The OAIC is committed to responding to 90% of written enquiries within 10 working days. This benchmark was met in 2012–13, with 97.0% of FOI-related written enquiries responded to within 10 working days.

The majority of FOI enquiries were from individuals, indicating good public awareness of the availability of this information service.

Table 8.1 below sets out the types of enquirers who sought information from the enquiries line about FOI in 2012–13. This table includes information on both written and telephone enquiries.

Table 8.1 Types of FOI enquirers
Enquirer type
Number of enquiries
Individual
1692
Australian Government
622
Legal, accounting and management services
40
Business and professional associations
20
State Government
13
Health service providers
12
Media
10
Personal services (including employment, child care, vets)
5
Political and lobbying
5
Education
5
Local Government
4
Charities
2
Property, construction, architects and surveyors
2
Utilities
2
Insurance
2
Interest groups, theatre and sports
2
Religious organisations
1
Retail
1
Telecommunications
1
Clubs and pubs
1
Debt collectors
1
Finance (including superannuation)
1
ACT Government
1

Table 8.2 provides a breakdown of the types of enquiries made to the OAIC during 2012–13. The data in the table indicates that individuals contacted the OAIC enquiries line for advice in relation to FOI matters more often than Australian Government agencies. Approximately 44% of all calls about FOI matters related to general processes for FOI applicants, including making an FOI application or a complaint, or seeking a review. This table includes statistics on both written and telephone enquiries.

Table 8.2 Breakdown of issues in FOI enquiries received
Issue
Number of enquiries
General processes
1079
Processing by agency
435
Agency statistics
239
Access to general information
48
Access to personal information
37
Amendment and annotation
10
Vexatious application
7

 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 that requested documents do not exist or cannot be found
  • 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 Commissioner (FOI Commissioner) or the Privacy Commissioner. A Commissioner's decision on IC review can be reviewed by the Administrative Appeals Tribunal (AAT), on the application of a party to the IC review.

IC review provides a simple, practical and cost-efficient system of external merits review. A 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 FOI 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. 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 because the agency has addressed the applicant's concern, such as by releasing information or providing a better explanation of its decision). 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.

In 2012–13, the OAIC received 507 applications for IC review, 11.2% more than in 2011–12.

In 483 applications (or 95.3% of all applications), IC review applicants sought review of access refusal decisions (including decisions on charges or amendment of personal records); 24 applications were for review of access grant decisions. Details of the agencies whose decisions were the subject of IC review applications in 2012–13 are given in Chapter 9.

The OAIC closed 419 IC reviews in 2012–13. Table 8.3 shows the outcome for all of these IC reviews. Eighty-nine (21.2%) were concluded through published decisions by the Information Commissioner, the FOI Commissioner or the Privacy Commissioner. Ministers' and agencies' decisions were affirmed in 58 of those published decisions (65.2%), and set aside or varied in 31.

Table 8.3 Information Commissioner reviews by outcome
Information Commissioner decision
Number
s 54N — out of jurisdiction or invalid
66
s 54R — withdrawn
95
s 54R — withdrawn/conciliated
20
s 54W(a) —deemed acceptance of preliminary view or appraisal
2
s 54W(a)(i) — lacking in substance
86
s 54W(a)(ii) — failure to cooperate
33
s 54W(a)(iii) — lost contact
9
s 54W(b) — refer to AAT
17
s 54W(c) — failure to comply with direction
2
s 55F — varied by agreement
0
s 55K — affirmed by IC
58
s 55K — set aside by IC
28
s 55K — varied by IC
3
Total
419

Sixty-six applications for IC review were outside the jurisdiction of the OAIC or invalid. In some cases applicants had 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.

In some cases, the IC review application did not meet the requirements of a valid application, set out in s 54N. These requirements include that an application must be made in writing, and the applicant must provide the OAIC with a copy of the decision that they want reviewed. 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 addressed as a complaint or an enquiry.

Although no IC reviews were formally resolved in 2012–13 under s 55F (by way of written agreement between all parties to the IC review), 20 IC reviews were finalised by way of the applicant withdrawing their request for IC review, following action taken by the agency to resolve the applicant's concerns (such as by releasing information informally or making a revised decision under s 55G). The OAIC encourages resolution of IC reviews by agreement between the parties where possible.

Chart 8.1 shows the number of IC reviews received by the OAIC from the commencement of its operations in November 2010 until 30 June 2013. The darker part of each bar indicates the number of IC reviews received in each month and still on hand on 30 June 2013.

Chart 8.1 IC reviews received by month

Chart 8.1 is a bar graph showing IC reviews received by month, including those still on hand at 30 June 2013
Chart 8.1 Text version

Since early in its operation, the OAIC has had a backlog of IC reviews on hand: that is, not finalised. Despite a significant increase in the finalisation rate of IC reviews, on 30 June 2013 the OAIC had 447 IC reviews on hand, 25.2% more than the 357 on hand a year earlier. Of those IC reviews on hand at 30 June 2013, 105 (23.5%) were more than 12 months old.

One of the OAIC's deliverables (see Chapter 2) is to finalise 80% of all IC review applications within six months of receipt. In 2012–13, 40.0% were finalised within six months (in 2011–12, 32.8% were finalised within six months).

Before and during the reporting period, the OAIC took a number of steps to improve its efficiency in dealing with IC reviews and complaints. In May 2012, a Senior Executive Service (SES) officer was seconded from the Attorney–General's Department to undertake a management review of the OAIC's handling of FOI complaints and reviews. New processes were introduced. There were also further secondments and some non–ongoing staff were assigned to work in these areas on a temporary basis.

These changes were successful. The OAIC finalised 419 IC reviews during 2012–13, which is 65.6% more than the 253 finalised in 2011–12. Of these, 89 were finalised by way of a published decision in 2012–13: this is three-and-a-half times more than the 25 IC reviews finalised in this way in 2011–12.

The extent of the improvement in processing of IC reviews is clear from Chart 8.2, which shows the number of IC reviews closed by the OAIC from the commencement of its operations in November 2010 until 30 June 2013.

Chart 8.2 IC reviews closed by month

Chart 8.2 is a bar graph showing Information Commissioner reviews closed by month

Chart 8.2 Text version

The OAIC is not funded to maintain the staffing levels that contributed greatly to the much-improved IC review finalisation rate in 2012–13. It is highly unlikely that that level of performance can be attained again without additional resources and changes to the system of IC review in the FOI Act (see the discussion of the Hawke Review, below). There are no prospects in the medium term of increased resourcing, or of further reform of the FOI Act. The OAIC will continue to look for ways to improve its processing of IC reviews and complaints within existing resourcing and legislative constraints.

 FOI complaints and investigations

One of the Information Commissioner's functions is to investigate agency actions relating to the handling of FOI matters. An investigation can arise from a complaint 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. Part 11 of the FOI Guidelines details the process that the OAIC follows in investigating complaints.

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.

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.

In 2012–13, the OAIC received 148 FOI complaints, 17.5% more than in 2011–12.

Table 8.4 lists the agencies about which two or more complaints were made to the OAIC during 2012–13. Between 2011–12 and 2012–13, there has been a reduction in complaints about the Department of Immigration and Citizenship (from 17 to 11), and a marked increase in complaints against the Department of Human Services (from 23 to 40).

Table 8.4 Respondent agencies with two or more complaints
Agency
Complaints received
Department of Human Services
40
Australian Federal Police
12
Department of Immigration and Citizenship
11
Department of Defence
7
Australian Taxation Office
7
Department of Veterans Affairs
6
Comcare Australia
6
Commonwealth Ombudsman
4
Department of Finance and Deregulation
4
Department of Education, Employment and Workplace Relations
3
CRS Australia
3
Department of Health and Ageing
3
Airservices Australia
3
Australian Customs and Border Protection Service
3
Attorney-General's Department
3
Australian Government Solicitor
2
Australian Crime Commission
2
National Archives of Australia
2

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 2012–13 was processing delay (in 52 complaints or 35.1% 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 2012–13
Issue
Number of complaints
Processing delay
52
Unsatisfactory customer service
36
Agency failure to acknowledge request
24
Agency failure to assist with application
17
Processing error
17
Unsatisfactory reasons for decision
11
Inadequate search
10
Incorrect application of law
8
Excessive charges
6
Information publication scheme
1
Total
182

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, 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 (36 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.

A continuing complaint trend in 2012–13 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 (24 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.

The OAIC closed 149 complaints in 2012–13. Those 149 complaints raised 188 separate issues. Table 8.6 indicates the way that those 188 issues were finalised.

Thirty-six complaint issues were withdrawn by the complainant. Twelve were withdrawn following action by the OAIC to conciliate between the complainant and the agency and, as a result, further investigation was not required.

Table 8.6 Method for finalising complaint issues
Finalisation method
Number of complaints
s 70 — not in jurisdiction
26
s 73(a) — not exercising power
2
s 73(b) — merits review
9
s 73(d)(i) — adequately dealt with
19
s 73(d)(ii) — dealing with complaint
3
s 73(e) — frivolous, vexatious, lacking in substance
25
s 73(f) — insufficient interest
11
s 86 — no recommendations made
43
s 86 — recommendations made
2
Complaint withdrawn
36
Complaint conciliated and withdrawn
12

Chart 8.3 shows the number of FOI complaints received by the OAIC from the commencement of its operations in November 2010 until 30 June 2013. The darker part of each bar indicates the number of complaints received in each month and still on hand at 30 June 2013.

Chart 8.3 FOI complaints received by month

Chart 8.3 is a bar graph showing FOI complaints received by month, including those on hand as at 30 June 2013.

Chart 8.3 Text version

As with IC reviews, the OAIC has a backlog of complaints on hand: that is, not finalised. On 30 June 2013 the OAIC had 75 complaints on hand, the same number as were on hand a year earlier. Of those complaints on hand at 30 June 2013, only two (2.7%) were more than 12 months old.

One of the OAIC's deliverables (see Chapter 2) is to finalise 80% of all FOI complaints within 12 months of receipt. In 2012–13, 90.5% were finalised within 12 months (in 2011–12, 88.1% were finalised within 12 months).

As discussed above, the OAIC has taken a number of steps to improve its efficiency in dealing with FOI complaints. These changes were successful. The OAIC finalised 149 FOI complaints during 2012–13, which is 49.0% more than the 100 finalised in 2011–12.

The extent of the improvement in processing FOI complaints is clear from Chart 8.4, which shows the number of complaints closed by the OAIC from the commencement of its operations in November 2010 until 30 June 2013.

Chart 8.4 FOI complaints closed by month

Chart 8.4 is a bar graph showing FOI complaints closed by month

Chart 8.4 Text version

The backlog of FOI complaints is not as large — or of as much concern — as the backlog of IC reviews. But, as noted above in relation to IC reviews, the OAIC continues to look to ways to improve its processing of IC reviews and complaints within existing resourcing and legislative constraints.

 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.

On 26 September 2012, the Information Commissioner finalised an OMI into the Department of Immigration and Citizenship's (DIAC) handling of complex and sensitive FOI requests. This investigation considered DIAC's handling of 27 complex FOI requests, each of which had been the subject of a complaint to the OAIC, or an application for IC review. These FOI requests — by journalists, a member of Parliament and a community organisation — were for information on policy matters of public interest.

Since the finalisation of the OMI and consequent steps taken by DIAC to address the investigation findings, the number of complaints received by OAIC about the Department has decreased substantially (as noted above).

 Investigation recommendations

On completion of a complaint investigation, the Information Commissioner may make 'investigation recommendations': formal recommendations to the respondent agency that the Commissioner believes the respondent agency ought to implement (s 88). In 2012–13, the Information Commissioner made three sets of investigation recommendations:

  • on 26 September 2012, to DIAC as part of the OMI outlined above
  • on 13 December 2012, to the Department of Veterans' Affairs (DVA) in relation to its use of s 24AB notices
  • on 25 June 2013, to the Fair Work Commission (FWC) in relation to its use of precedent letters and templates.

Each of these agencies has subsequently taken action, adequate and appropriate in the circumstances (see s 89(1)(c)), to implement the investigation recommendations made.

 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 that deemed 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.

The OAIC finalised 2290 extensions of time in 2012–13. Table 8.7 shows the number of notifications and extension of time requests finalised in 2012–13, and the outcomes for these. 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 Notifications and extension of time requests finalised
Request type
Granted or acknowledged
Granted but varied
Granted with conditions
Not granted
Invalid request
With-drawn
Total number
of requests
s 15AA
1508
0
0
0
17
2
1527
s 15AB
331
17
5
10
6
17
386
s 15AC
158
3
90
19
5
11
286
s 51DA
0
0
0
0
0
0
0
s 54D
41
0
7
0
4
2
54
s 54T
22
0
0
10
1
4
37
Total
2060
20
102
39
33
36
2290

Key:

s 15AA — notification of agreement between agency and applicant to extend time

s 15AB — extension of time for complex or voluminous request

s 15AC — extension of time where deemed refusal of FOI request

s 51DA — extension of time where deemed refusal of request to amend personal record

s 54D — extension of time where deemed affirmation of original decision on internal review

s 54T — extension of time for person to apply for IC review

Notifications and extension of time requests fall into four categories:

  • An agency must notify the OAIC of an agreement it has made with an applicant under s 15AA of the FOI Act. 1527 (or 66.7%) of the notifications and extension of time requests finalised in 2012–13 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. Seventeen 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 may seek 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 386 such applications in 2012–13. Three hundred and thirty-one of these (85.8%) were granted for the period of time sought by the agency. Seventeen applications (4.4%) were granted but for a lesser period than the agency sought. Ten applications (2.6%) were not granted.
  • An agency may seek an extension of processing time, under s 15AC, s 51DA or s 54D of the FOI Act, where the agency is deemed to have refused the request because it has exceeded the time given under the FOI Act. The OAIC finalised 340 such applications in 2012–13. One hundred and ninety-nine of these (58.5%) were granted for the period of time sought by the agency. One hundred applications (29.4%) were granted but with conditions or for a lesser period than the agency sought. Nineteen applications (5.6%) were not granted.
  • A person may seek 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 37 such applications in 2012–13. Twenty-two of these (59.5%) were granted.

The extension of time provisions are an important feature of the FOI Act. 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 has regard to the impact this might have on an applicant. However, while this can be influential it is not determinative.

 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 or her 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 FOI Guidelines provides guidance on such declarations.

During 2012–13, the Information Commissioner received three applications from agencies, under s 89K, seeking to have a person declared a vexatious applicant. Four applications were finalised: two declarations were made under s 89K; two applications were refused.

 Information Publication Scheme

Part II of the FOI Act establishes the Information Publication Scheme (IPS) which 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.

In 2011–12, the OAIC surveyed 191 agencies on their compliance with their IPS obligations, assessing agencies against five key criteria set out in the FOI Guidelines. The OAIC published a report outlining the results of that survey in August 2012. Overall, the results indicated that agencies were complying positively with most of the five key IPS criteria. 94% of agencies reported that they had published an agency IPS plan and more than 85% of agencies published each of the required types of information on their website. The survey also showed that 71% of agencies had a mechanism in place for identifying other information that could be published under the IPS. Over 90% of agencies indicated that they had appointed a senior executive officer with IPS responsibility and over 75% indicated that they had IPS policies and procedures in place. However, there was scope for improvement with regard to having:

  • a formal IPS governance structure
  • training arrangements (at both the induction and on-going stages)
  • IPS complaint handling procedures.

With regard to web accessibility, only 20% of agencies indicated that the documents they have published under the IPS are in a format (or multiple formats) that conform to the Web Content Accessibility Guidelines (WCAG) 2.0 requirements. A further 30% indicated that most of their documents comply.

The OAIC's February 2013 information policy report Open public sector information: from principles to practice (discussed in Chapter 5) also contained results relevant to the IPS. Twenty-one per cent of agencies said that identifying information to be published in addition to the mandatory IPS (and FOI disclosure log) publication requirements was the most challenging aspect of implementing open access to information as a default position. Reasons cited included the lack of an agency register of information assets and problems reconciling open access with confidentiality, security or privacy concerns.

During 2012–13 the OAIC also revised guidance on how FOI information is presented on agency websites (including information in agency IPS entries). Further information is provided below.

 Disclosure log

All Australian Government ministers and agencies that are subject to the FOI Act are required to publish an FOI disclosure log on their website. The disclosure log lists information that has been released in response to a request under the FOI Act. There are some exceptions to this requirement: for example, agencies are not required to place on the disclosure log information about any person if publication of that information would be unreasonable.

In 2012–13 the Information Commissioner assisted agencies, ministers and the public to understand the disclosure log requirements by updating the FOI Guidelines, and by providing written and verbal responses to requests for information and advice.

Information was also collected for the first time in 2012–13 from agencies and ministers on disclosure log activity. The intention to collect this information is explained in paragraph [14.71] of the FOI Guidelines. A total of 118 agencies and ministers provided information. Collectively, they reported that 859 documents could be downloaded from the agency's or minister's website, 18 documents from another website, and in 433 instances the agency or minister made the documents available by another means (usually upon request for documents listed in the disclosure log). The agencies and ministers also reported a total of 97,106 unique visits to disclosure logs and 899,955 page views.

During 2012–13, three entries were added to the OAIC's own disclosure log. These entries, including copies of the released documents, can be found on the OAIC website.

 Assisting agencies

One of the OAIC's important roles is to assist agencies that are subject to the FOI Act to comply with their obligations under that Act. Details of agency FOI activities are given in Chapter 9.

In May 2012, the Department of Health and Ageing (DoHA) applied for IC review of a decision of IP Australia. Before deciding whether to undertake an IC review, the OAIC raised with DoHA the question of whether an agency can be a person for the purposes of the FOI Act: that is, whether an agency can make an access request under the FOI Act for documents of another agency. In October 2012, DoHA withdrew its application for IC review.

In March 2013, the FOI Commissioner wrote to the Secretary of the Department of Foreign Affairs and Trade (DFAT). The OAIC had been made aware of a document, published on DFAT's disclosure log, which raised concerns that DFAT might not be fully aware of the effect of the 2010 reforms of the FOI Act and the pro-disclosure nature of the amended FOI Act. The document was an email from a DFAT officer to officers of the United States government. It mistakenly stated that '[t]he starting position for deciding on FOI release is that all diplomatic exchanges are presumed to be in confidence, that their release would cause damage to our relationships, and that they should therefore be exempt' under s 33. The Secretary of DFAT replied in April 2013, confirming that 'DFAT decision-makers consider carefully each requested document when deciding whether it should be released or an exemption claimed'.

Guidelines issued under s 93A of the FOI Act

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

Most parts of the Guidelines were updated in 2012–13 to reflect legislative changes, IC review decisions, relevant decisions of the AAT and Federal Court, and other developments affecting the operation of the FOI Act. Notable updates included:

  • Noting in Parts 2, 3 and 5 that the Parliamentary Budget Office (PBO) and the Parliamentary Budget Officer are exempt under the FOI Act. Related updates affecting all agencies and ministers subject to the FOI Act included the exemption for PBO documents in s 45A and the discretion under s 25 of the FOI Act to neither confirm nor deny the existence of a document falling under that exemption.
  • Revising Part 3, and publishing an accompanying statement from the Information Commissioner, to provide new advice about who qualifies as a 'person' eligible to make a request under s 15 of the FOI Act.
  • Amending Parts 9 and 10 to clarify the review rights of affected third parties following decisions to grant access to documents. These amendments followed the release in August 2012 of a discussion paper by the Information Commissioner about third party review rights.

These amendments are outlined in a table of links to archived versions of the FOI Guidelines available on the OAIC website. That table also summarises significant changes between each version of the Guidelines.

The latest version of the Information Commissioner's FOI Guidelines is available on the OAIC's website.

Agency resources

The OAIC publishes agency resources to assist agencies in applying the FOI Act. In 2012–13 the OAIC published a new FOI agency resource on administrative access schemes. The resource explains how agencies can establish schemes designed to provide access to information quickly and efficiently outside of the FOI Act process.

Agency resources are advisory only and do not bind agencies. Agency resources are available on the OAIC's website.

Other guidance material

The OAIC publishes other guidance material in relation to FOI, which is also available at the OAIC's website. During 2012–13, the OAIC published Guidance for agency websites: 'Access to information' web page, which updated the Information Commissioner's previous guidance on how agency websites should present information about making an FOI request, and how agencies should set out their IPS entry and FOI disclosure log. The updated guidanceintroduced a new, optional 'access to information' approach, where agencies can choose to give greater prominence to means of accessing information other than the formal FOI access request process.

The OAIC also published a set of commonly asked questions for agencies about the operation of the FOI Act. The questions covered a wide range of issues including how agencies should process FOI requests, how and when to release documents to an FOI applicant, agency obligations with regard to Commonwealth contracts, and how agencies should manage their disclosure logs and IPS.

FOI advice provided

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

  • charges — including contesting the imposition of a charge after paying the charge, and cases where an applicant decides to reduce the scope of their FOI request in response to a charge
  • exemptions and conditional exemptions
  • deferral of access
  • transferring requests to other agencies or ministers
  • processing requests for the same or similar documents
  • the interaction between requirements of an FOI request in s 15 and the operation of the practical refusal mechanism in s 24AA
  • online accessibility implications of IPS and disclosure log publication obligations
  • the IPS — including the definition of 'operational information', recommended headings, whether legacy material must be published, and the release of statistical data
  • the disclosure log — including staff privacy and the operation of FOI Disclosure Log Determination 2011–1
  • national regulatory schemes — the OAIC's jurisdiction in cases where Australian Government or State Government agencies have adopted a modified version of the FOI Act to respond to requests for particular documents
  • agency reporting obligations.

 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 the 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 meetings
  • speeches on FOI by the Commissioners.

In 2012–13 the OAIC published a set of commonly asked questions for individuals about the operation of the FOI Act. The questions covered issues including what information is available under the FOI Act, how the FOI request process works and when individuals can complain about an agency's actions or apply for review of an agency's FOI decision.

The OAIC also published a new fact sheet about extensions of time under the FOI Act. The fact sheet explains when the usual 30-day timeframe for processing an FOI request may be extended and other matters that may effect that timeframe.

 Other developments

Amendment of the FOI Act and Regulations

Several amendments to the FOI Act were made during the reporting period.

The Freedom of Information Amendment (Parliamentary Budget Office) Act 2012 came into force on 4 December 2012. It introduced a new exemption for PBO documents (s 45A) and expanded the scope of s 25(2) to allow agencies and ministers to neither confirm nor denythe existence of documents falling under the new exemption.

The Royal Commissions Amendment Act 2013 came into force on 28 March 2013. It exempts all agencies and ministers from the operation of the FOI Act in relation to documents containing information obtained at a private session before the Child Sexual Abuse Royal Commission that identifies a natural person who appeared at a private session, or that contains information summarised or extracted from a private session (s 7(2E)).

The Courts Legislation Amendment (Judicial Complaints) Act 2012 came into force on 12 April 2013. It provides that the FOI Act does not apply to certain documents of the Federal Court, the Family Court and the Federal Circuit Court of Australia that relate to complaint handling.

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

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. The Government appointed Stuart Morris QC to conduct the review. As reported in the OAIC's Annual Report 2011–12, the Freedom of Information Commissioner met with Mr Morris, and provided some information to the review about the OAIC's interactions with NBN Co.

On 16 August 2012, the Attorney-General tabled the report of the review. The review found that NBN Co had complied with its lawful requirements in administering the FOI Act, had used a careful process to identify exempt documents, had sought to minimise the cost to applicants, had operated in a timely manner, and had generally adopted a pro-disclosure attitude.

Exclusion of the Parliamentary departments from the FOI Act

As explained in the OAIC's Annual Report 2011–12, for years it had been assumed that the FOI Act did not apply to the Parliamentary departments: the Department of the House of Representatives, the Department of the Senate and the Department of Parliamentary Services. It came to light in December 2011 that the Parliamentary departments had become subject to the FOI Act with the passage of the Parliamentary Service Act 1999, and the Information Commissioner amended the FOI Guidelines to reflect this fact in May 2012.

The Parliamentary Service Amendment (Freedom of Information) Act 2013 came into force on 28 June 2013. It amended the Parliamentary Service Actto retrospectively exempt the Parliamentary departments, and people holding or performing the duties of an office established under that Act, from the operation of the FOI Act. The Minister's second reading speech noted that the amending legislation was an interim measure pending consideration of recommendations on this issue from the review of the FOI Act undertaken by Dr Allan Hawke AC (discussed below).

Hawke Review of the FOI Act and AIC Act

On 31 October 2012, the Attorney-General announced that Dr Allan Hawke AC would undertake a review of the operation of the FOI Act and the Australian Information Commissioner Act 2010 (AIC Act), as required by s 93B of the FOI Act and s 33 of the AIC Act. The terms of reference stipulated that the review should consider:

  1. the impact of reforms to freedom of information laws in 2009 and 2010, including the new structures and processes for review of decisions and investigations of complaints under the FOI Act, on the effectiveness of the FOI system;
  2. the effectiveness of the Office of the Australian Information Commissioner;
  3. the effectiveness of the new two-tier system of merits review of decisions to refuse access to documents and related matters;
  4. the reformulation of the exemptions in the FOI Act including the application of the new public interest test taking into account:
    1. the requirement to ensure the legitimate protection of sensitive government documents including Cabinet documents; and
    2. the necessity for the government to continue to obtain frank and fearless advice from agencies and from third parties who deal with government;
  5. the appropriateness of the range of agencies covered, either in part or in whole, by the FOI Act;
  6. the role of fees and charges on FOI, taking into account the recommendations of the Information Commissioner's review of the current charging regime; and
  7. the desirability of minimising the regulatory and administrative burden, including costs, on government agencies.

In December 2012, the Information Commissioner and the FOI Commissioner made a submission to the review. It addressed the terms of reference and made 30 proposals for reform. In broad terms, these proposed:

  • establishing a national action plan to further develop and embed the open government agenda and the Government's commitment to cultural change
  • embedding a strong administrative access framework in agencies to complement formal FOI access rights
  • considering whether the FOI Act's focus on documents rather than information is appropriate given the changes to how information is electronically recorded and shared since the FOI Act's commencement in 1982
  • removing Part V of the FOI Act so that the Privacy Act 1988 provides the sole mechanism for requests to amend personal information
  • numerous changes to the Information Commissioner review process to provide for faster and more efficient review of decisions, and broader scope for resolving applications by agreement between the parties to a review
  • addressing issues with the FOI charging framework, largely through adoption of the recommendations from the Information Commissioner's February 2012 review of charges under FOI Act
  • excluding certain types of documents, such as incoming government briefs and parliamentary question time briefs, from the operation of the FOI Act for a defined period after the creation of the documents
  • considering the appropriateness of the continuing exemption of intelligence agencies from the FOI Act, noting the approaches taken in other jurisdictions and the existence of exemptions that can be applied on a document-by-document basis
  • that the FOI Act continue (as it did at that point) to apply to Parliamentary departments other than the PBO, with consideration given to the need for an exemption for research/advice to Members of Parliament provided by the Parliamentary Librarian
  • numerous measures to allow agencies to more efficiently process FOI requests, including streamlined extension of time provisions, and the introduction of a reviewable vexatious request power for agencies.

The submission also included a table identifying technical issues in the FOI Act and AIC Act that hinder the smooth functioning of the FOI regime and create regulatory complexity for agencies.

On 20 February 2013, the Information Commissioner and the FOI Commissioner made a supplementary submission to the review. This covered issues which came to light following their December submission, and made five further recommendations.

The submission and supplementary submission are available at the OAIC's website. Dr Hawke's report was tabled on 2 August 2013, outside the reporting period.

30th anniversary of the FOI Act

In November 2012, the OAIC held an event in Canberra to celebrate the 30th anniversary of the FOI Act. Further information about this event can be found in Chapter 4.