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Message from the Freedom of Information Commissioner, Dr James Popple

Photograph of Freedom of Information Commissioner, Dr James PoppleTrends are beginning to emerge from the first two years of operation of the recent reforms to the Freedom of Information Act 1982 (FOI Act). Generally, the reforms continue to be successful. But there are still some agencies in which a pro-disclosure culture has not been fully embraced. There are also parts of the freedom of information (FOI) system that are feeling the strain brought about by some of the reforms, and by competition for decreasing resources. Delays in processing — by agencies and by the Office of the Australian Information Commissioner (OAIC) — are preventing the system from being as effective as it could be. Access to government information is easier and cheaper, but not always quicker. This means that the reformed FOI Act is not fulfilling its potential to enhance public access to government information, and the full value of that national resource is not being achieved.

The information presented in this Annual Report reflects continuing high levels of activity across all parts of the FOI system in 2012–13:

Requests for access to documents

  • Australian Government ministers and agencies received 24,944 FOI requests, an increase of only 0.7% on the previous year. In each of the two years before that, there was an average increase of 7.1%. 69.3% of all requests were received by three agencies: the Department of Immigration and Citizenship (DIAC), the Department of Veterans' Affairs and the Department of Human Services.
  • The number of requests for personal information was almost unchanged (down 0.8%). These were 79.5% of all requests.
  • The number of requests for other than personal information increased by 7.1%. In the three years since 2009–10 (which was the last full year before the reforms commenced) there has been an 85.1% increase in these requests. This has had a significant impact on agencies because requests of this type are typically more complex and can require more agency resources to process than requests for personal information.

Practical refusal / request consultation processes

  • Agencies sent almost two-and-a-half times as many notices of intention to refuse a request because a 'practical refusal reason' existed, but only 42.7% of those requests were subsequently refused or withdrawn (down 38.8%). This may indicate that the request consultation process is working better: that agencies are giving applicants sufficient information to refine the scope of their requests or to better identify the documents sought, so that their requests can be processed.

Determination of FOI requests

  • Agencies and ministers determined 21,764 requests (down 2.2%).
  • Access was granted, in full or in part, in 89.4% of all requests determined (up 1.0%).
  • One or more exemptions were claimed in 55.3% of all requests determined (up 13.1%). The most-claimed exemption is still the personal privacy exemption (in 20.6% of requests determined).

Timeliness

  • 85.6% of all requests determined were processed within the applicable statutory time period (down 2.9%).
  • The number of requests that agencies had on hand (that is, requests upon which a decision had not been made) at the end of the year increased by 10.2%. This suggests that some agencies are finding it hard to meet their FOI obligations within their existing resources.

Amendment applications

  • Twelve agencies received 2854 applications for amendment of personal records (down 18.9%), and one agency (DIAC) received more than 98% of them.
  • Agencies determined 2893 amendment applications (down 9.2%). A decision to amend or annotate a person's personal record was made in response to 72.9% of applications (down 0.1%).

Internal review

  • Agencies made 485 decisions on internal review (up 14.7%), and affirmed the original decision in 48.0% of those reviews (down 0.4%).

Cost and charges

  • The reported cost attributable to agency compliance with the FOI Act was $45.231 million (up 8.4%). Even when previous figures are adjusted for inflation, this is the highest annual cost since the FOI Act commenced in 1982. (The adjusted cost in 1984–85 is the next highest.)
  • Agencies recovered $236,754 in FOI charges. This is 0.52% of the total cost, the lowest proportion for 27 years.

In its three core areas of FOI compliance activity, the OAIC:

  • received 507 applications for Information Commissioner review (IC review — up 11.2%) and closed 419 (up 65.6%)
  • received 148 FOI complaints (up 17.5%) and closed 149 (up 49.0%), and
  • processed 2290 notifications and extension of time requests (up 2.4%).

The OAIC also completed an own motion investigation into DIAC's handing of complex and sensitive FOI requests. And two vexatious application declarations were made.

In 2012–13, for the first time, information was collected from agencies and ministers on disclosure log activity. The OAIC also surveyed 191 agencies on their compliance with their obligations under the information publication scheme in the FOI Act. The survey results indicate that agencies are complying positively with most of the five key IPS criteria set out in the Information Commissioner's guidelines.

The OAIC continued to promote awareness and understanding of the FOI Act and its objects. It did this through updating most parts of the guidelines, publishing several new fact sheets and agency resources, and providing a range of other guidance.

Wherever possible, the OAIC aims to conciliate IC reviews. Of the IC reviews closed in 2012–13, 89 (21.2%) were concluded through published decisions by one of the three Commissioners, because conciliation was not possible. Ministers' and agencies' decisions were affirmed in 65.2% of those decisions, and set aside or varied in the remainder. This rate of affirmed decisions indicates a high level of understanding, by ministers and agencies, of their obligations under the FOI Act.

The most frequently raised issue in FOI complaints about agencies continues to be processing delay. Many of these arose from poor communication on the part of an agency, failing to keep the FOI applicant informed about the progress of their request. The OAIC continues to encourage agencies to communicate better with FOI applicants, and to take reasonable steps to assist applicants to make their requests, as the FOI Act requires agencies to do.

The OAIC has taken a number of steps to improve its efficiency in dealing with IC reviews and complaints, to address the backlog that it has had since early in its operation. New procedures have been developed. Non-ongoing and seconded staff have been assigned to work on IC reviews and FOI complaints on a temporary basis. The result has been a significant improvement in closure rates, noted above.

But, despite these improvements, on 30 June 2013 the OAIC had on hand 447 IC reviews (up 25.2%) and 75 FOI complaints (the same as a year earlier). Of those matters on hand, 105 IC reviews (23.5%) and two complaints (2.7%) were more than 12 months old. This level of delay has a detrimental effect on the FOI system.

The OAIC is not funded to maintain the staffing levels that led to its improved closure rates in 2012–13. We will continue to look for ways to improve our processing of IC reviews and FOI complaints within existing resourcing. But it is highly unlikely that that level of performance can be attained again without additional resourcing or a reduction in the volume of work coming in (neither of which is likely in the medium term), or changes to the FOI legislative framework.

In 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. The Information Commissioner and I made extensive submissions to the review. Our submissions recommended changes that would improve the FOI system as a whole, and the OAIC's capacity to deal with IC reviews, complaints and extensions of time. We also pointed out several technical deficiencies in the FOI Act. Dr Hawke's report was tabled after the reporting period.

The information presented in this annual report shows that the FOI system is generally performing well. But some structural change is needed to improve the timeliness of FOI decision making, so that the underlying vision of the FOI Act — government information managed for public purposes as a national resource — can be fully realised.