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Chapter Eight — Freedom of information policy and compliance

Overview

2013–14 was the third 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 finalising 646 applications for Information Commissioner review (IC review) (up 54.2% from 2012–13), 119 freedom of information (FOI) complaints (down 20.1%, due to the drop in FOI complaints received in 2013–14), 2456 extension of time requests and notifications (up 7.2%), and responding to 1903 enquiries.

During 2013–14, the OAIC significantly reduced the backlog of IC reviews and complaints that existed at the start of the reporting year. At the beginning of 2013–14, the oldest unactioned IC review application was 206 days old; at the end of the year, the oldest such matter was 40 days old. The number of IC reviews on hand was reduced by more than 100.

Table 8.1 shows the total number of IC reviews received and closed by the OAIC since 2010.

Table 8.1 IC reviews received and closed since 2010
 
2010–11 (from 1 November)
2011–12
2012–13
2013–14
Total number
of IC reviews
Received
176
456
507
524
1663
Closed
29
253
419
646
1347

The OAIC provided a range of advice on FOI matters, including updating eight of the 15 parts of the Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (FOI Guidelines) and releasing a new agency resource.

On 13 May 2014, the Australian Government announced as part of the 2014–15 Budget that the OAIC will be disbanded from 31 December 2014. The OAIC's FOI functions will be exercised by the Attorney-General's Department (FOI guidelines and annual reporting), the Administrative Appeals Tribunal (AAT) (FOI merits review functions) and the Commonwealth Ombudsman (FOI complaint handling).

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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 2013–14, the enquiries line received 16,491 telephone calls, 790 of which specifically related to FOI matters that were within the jurisdiction of the OAIC. A further 526 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, fax or our online form. Of the 3789 written enquiries received by the OAIC in 2013–14, 460 related to FOI matters that were within jurisdiction of the OAIC. A further 127 written enquiries were received about FOI matters out of jurisdiction.

In total, the OAIC received 1903 phone and written FOI enquiries (including those out of jurisdiction).

The OAIC is committed to responding to 90% of written enquiries within 10 working days. This benchmark was met in 2013–14, with 90% of FOI-related written enquiries responded to within 10 working days.

Table 8.2 sets out the types of enquirers who sought information from the enquiries line about FOI in 2013–14, including written and telephone enquiries. 69.5% of enquiries were from individuals, and 25.6% from Australian Government agencies.

Table 8.2 Types of FOI enquirers
Enquirer type
Number of enquiries
Individuals
1322
Australian Government
488
Legal, accounting and management services
25
State government
12
Business and professional associations
12
Media
11
Personal services (including employment, child care, vets)
7
Political and lobbying
7
Local government
4
Education
3
ACT Government
2
Agriculture, Forestry, Fisheries
2
International government
2
Transport
2
Travel and hospitality industry
2
Health service providers
1
Finance (including superannuation)
1

Table 8.3 provides a breakdown of the types of enquiries made to the OAIC during 2013–14. Approximately 65% of all calls about FOI matters related to general processes for FOI applicants, including how to make an FOI request or complaint or seek review of a decision. This table includes statistics on both written and telephone enquiries.

Table 8.3 Breakdown of issues in FOI enquiries received
Issue
Number of enquiries
General processes
813
Agency statistics
254
Processing by agency
244
Access to general information
36
Access to personal information
30
Information Publication Scheme
17
Vexatious application
5
Amendment and annotation
4

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Reviewing FOI decisions

The FOI Act provides that an FOI applicant who disagrees with an FOI decision made by an agency 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.

An Information Commissioner review (IC review) can be undertaken by the Information Commissioner, the Freedom of Information Commissioner (FOI Commissioner) or the Privacy Commissioner. A Commissioner's decision can be reviewed by the Administrative Appeals Tribunal (AAT), on the application of a party to the IC review.

An 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 the 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.

In 2013–14, the OAIC received 524 applications for IC review (up 3.4%). In 488 applications (or 93.1% of all applications), IC review applicants sought review of access refusal decisions, including decisions on charges or amendment of personal records; 14 applications were for review of access grant decisions. Details of the agencies whose decisions were the subject of IC review applications in 2013–14 are given in Chapter Nine.

The OAIC closed 646 IC reviews in 2013–14 (up 54.2%). Table 8.4 shows the outcome for all of these IC reviews. Ninety-eight (15.2%) were concluded through published decisions by the Information Commissioner, the FOI Commissioner or the Privacy Commissioner. Ministers' and agencies' decisions were affirmed in 40 of those published decisions (40.1%), and set aside or varied in 58.

Table 8.4 Information Commissioner reviews by outcome
Information Commissioner decision
Number
s 54N — out of jurisdiction or invalid
59
s 54R — withdrawn
111
s 54R — withdrawn/conciliated
69
s 54W(a) — deemed acceptance of preliminary view or appraisal
27
s 54W(a)(i) — lacking in substance
170
s 54W(a)(ii) — failure to cooperate
62
s 54W(a)(iii) — lost contact
0
s 54W(b) — refer to AAT
41
s 54W(c) — failure to comply with direction
0
s 55F — set aside by agreement
1
s 55F — varied by agreement
1
s 55F — affirmed by agreement
1
s 55G — substituted
6
s 55K — affirmed by IC
40
s 55K — set aside by IC
53
s 55K — varied by IC
5
Total
646

Fifty-nine applications for IC review were outside the jurisdiction of the OAIC or invalid. To be valid, an IC review application must meet the requirements set out in s 54N of the FOI Act. 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. Each time that an invalid application was received, 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.

In 2013–14, three matters were finalised by agreement under s 55F (by way of written agreement between all parties to the IC review), 69 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). 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 over the last two reporting periods. The darker part of each bar indicates the number of IC reviews received in each month and still on hand on 30 June 2014.

Chart 8.1 IC reviews received by month

Bar graph showing number of IC reviews received and number still open by month from July 2012 to June 2014. Link to long text description follows image.

Chart 8.1 Long text description

In 2013–14, the OAIC streamlined its processes for handling IC reviews and FOI complaints to address delays and a large backlog of unactioned matters. In 2012–13, the OAIC finalised 419 IC reviews; in 2013–14 it finalised 646. While the number of matters received increased slightly (from 507 to 524), the number of matters on-hand reduced by 122 between 30 June 2013 and 30 June 2014 (from 447 to 325).

One of the OAIC's deliverables (see Chapter Two) is to finalise 80% of all IC review applications within 12 months of receipt. In 2013–14, 71.2% were finalised within 12 months of receipt.

The improvement in processing rates of IC reviews is clear from Chart 8.2, which shows the number of IC reviews closed by the OAIC over the last two reporting periods.

Chart 8.2 IC reviews closed by month

Bar graph showing IC reviews closed by month from July 2012 to June 2014. Link to long text description follows image.

Chart 8.2 Long text description

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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.

An individual 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 deems appropriate. 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 Information 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 Nine.

In 2013–14, the OAIC received 77 FOI complaints compared with 148 in 2012–13. The OAIC finalised 119 complaints in 2013–14. Table 8.5 shows the total number of complaints received and closed since 2010–11.

Table 8.5 FOI complaints received and finalised since 2010–11
 
2010–11
2011–12
2012–13
2013–14
Total number
of FOI complaints
Received
88
126
148
77
439
Closed
39
100
149
119
407

Table 8.6 lists the agencies about which two or more complaints were made to the OAIC during 2013–14. The Department of Human Services (DHS) and the Department of Immigration and Border Protection (DIBP) continue to be the subject of the largest numbers of complaints, but this must be considered in the context of the high number of FOI requests that they each process.

Table 8.6 Respondent agencies with two or more complaints
Agency
Complaints received
Department of Human Services
20
Department of Immigration and Border Protection
10
Department of the Prime Minister and Cabinet
4
Department of Veterans' Affairs
4
Australian Securities and Investments Commission
4
Australian Taxation Office
3
Australian Federal Police
3
Department of Employment
2
Australian Crime Commission
2
Department of the Treasury
2

Table 8.7 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.

Table 8.7 Issues raised in FOI complaints received in 2013–14
Issue
Number of complaints
Processing delay
35
Unsatisfactory customer service
16
Agency failure to acknowledge request
14
Agency failure to assist with application
9
Processing error
5
Unsatisfactory reasons for decision
6
Inadequate search
4
Incorrect application of law
3
Excessive charges
3
Information Publication Scheme
2
Total
97

The most frequently raised issue in FOI complaints in 2013–14 was processing delay (in 35 complaints or 45.5% 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 can be 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. The OAIC has encouraged 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 (16 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 number of complaints related to FOI applications being rejected because an agency had taken a highly legalistic or technical approach to a request rather than seeking to first clarify the scope of the request with the applicant.

The 77 FOI complaints received by the OAIC in 2013–14 raised 97 separate issues. Table 8.8 indicates the way that those complaint issues were finalised.

Thirty-four complaints were withdrawn by the complainant. Fifteen 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 8.8 Method for finalising complaint issues
Finalisation method
Number of complaints
s 70 — not in jurisdiction
23
s 73(a) — not exercising power
2
s 73(b) — merits review
1
s 73(d)(i) — adequately dealt with
28
s 73(d)(ii) — dealing with complaint
2
s 73(e) — frivolous, vexatious, lacking in substance
29
s 86 — no recommendations made
11
s 86 — recommendations made
7
Complaint withdrawn
34
Complaint conciliated and withdrawn
15

Chart 8.3 shows the number of FOI complaints received by the OAIC over the last two reporting periods. The darker part of each bar indicates the number of complaints received in each month and still on hand at 30 June 2014.

Chart 8.3 FOI complaints received by month

Bar graph showing number of FOI complaints received and number still open by month from July 2012 to June 2014. Link to long text description follows image.

Chart 8.3 Long text description

On 30 June 2014, the OAIC had 33 complaints on hand, a significant reduction from the 75 matters on hand on 1 July 2013.

One of the OAIC's deliverables (see Chapter Two) is to finalise 80% of all FOI complaints within 12 months of receipt. In 2013–14, 82.3% of complaints were finalised within 12 months of receipt.

Chart 8.4 shows the number of complaints closed by the OAIC over the last two reporting periods.

Chart 8.4 FOI complaints closed by month

Bar graph showing FOI complaints closed by month from July 2012 to June 2014. Link to long text description follows image.

Chart 8.4 Long text description

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Own motion investigations

The Information Commissioner may undertake an FOI own motion investigation, which may consider a single agency action or a systemic or recurring issue in an agency's FOI practices and processes. No FOI own motion investigations were undertaken in 2013–14.

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FOI complaint investigation recommendations

On completion of an FOI 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.

In 2013–14, the Information Commissioner made four sets of investigation recommendations:

  • on 23 January 2014, to the Department of Veterans' Affairs, in relation to its practices for handling requests from frequent FOI applicants
  • on 14 March 2014, to DIBP, in relation to its approach to assessing the validity of FOI requests for statistical information
  • on 28 March 2014, to Comcare, in relation to its approach to handling requests for information that could be processed under the Safety, Rehabilitation and Compensation Act 1988 as well as the FOI Act
  • on 16 June 2014, to DIBP, in relation to its approach to assessing the validity of requests made via the website righttoknow.org.au.

The formal recommendation mechanism can lead to improvements in an agency's FOI processes. For example (as noted in the 2012–13 Annual Report), in June 2013, the Information Commissioner made investigation recommendations to the Fair Work Commission (FWC) in relation to its use of precedent letters and templates. In July 2013, the FWC advised the OAIC of the steps it had taken to implement those recommendations. These included a review of its precedent letters and the development of a procedures manual for its staff.

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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 2456 extensions of time in 2013–14. Table 8.9 shows the number of notifications and extension of time requests finalised in 2013–14, 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 8.9 Notifications and extension of time requests finalised
Request type
Granted or acknowledged
Granted but varied
Granted with conditions
Not granted
Invalid request
Queried
With-drawn
Total number of requests
s 15AA
1889
0
0
0
8
1
0
1898
s 15AB
285
9
3
11
10
0
44
362
s 15AC
14
2
103
8
4
0
1
132
s 54B
0
0
0
0
0
0
1
1
s 54D
2
0
21
0
7
0
1
31
s 54T
19
0
0
10
0
0
3
32
Total
2209
11
127
29
29
1
50
2456

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 54B — extension of time for application for internal review

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.

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. These provisions, and the opportunity for IC review of deemed decisions, result in greater agency accountability 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 considers the impact this might have on an applicant. However, while this can be influential it is not determinative.

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Vexatious applicant declaration requests

The Information Commissioner has the 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 Information Commissioner to make a declaration or the Information Commissioner can act on his or her own motion. A vexatious applicant declaration is not an action that the Information Commissioner will undertake lightly, but its use may be appropriate at times. A declaration by the Information Commissioner can be reviewed by the AAT.

During 2013–14, the Information Commissioner received six applications from agencies, under s 89K, seeking to have a person declared a vexatious applicant. Eight applications were finalised in 2013–14: four declarations were made under s 89K, three applications were refused and one was withdrawn.

The three applications that were refused related to the same FOI actions. After meeting with the agency and a person against whom the applications were sought, the Information Commissioner was not satisfied the grounds for making an application had been made out.

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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.

The OAIC has published guidance material to help agencies review their compliance with the IPS, and advice about how to structure IPS information on agency websites.

In 2013–14, the OAIC began planning the delivery of the next phase of the 2011–16 IPS compliance review. Under s 9 of the FOI Act, an agency must, in conjunction with the Information Commissioner, complete a review of the operation of the agency's IPS every five years. In line with this requirement, the OAIC previously published an IPS self-assessment tool and carried out a major survey of agencies about their compliance with IPS obligations. A second survey was scheduled for 2015. However, with the Government's announcement in May 2014 of the OAIC's closure, planning for the survey was discontinued.

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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 FOI 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 FOI disclosure log information about any person if publication of that information would be unreasonable.

In 2013–14, the Information Commissioner assisted agencies, ministers and the public to understand the FOI disclosure log requirements by updating the FOI Guidelines, and by providing written and verbal responses to requests for information and advice.

Information is also collected from agencies and ministers on FOI disclosure log activity. Further information on agency FOI activity can be found in Chapter Nine.

Under s 11C(2) of the FOI Act, the Information Commissioner can determine that the FOI disclosure log requirement does not apply to specific kinds of information. In October 2013, following a public consultation process, the Information Commissioner made Disclosure Log Determination No 2013–1 (Exempt documents). The determination operates in cases where an agency or minister gives an FOI applicant access to:

  • an exempt document, as permitted by s 3A of the FOI Act. This allows agencies and ministers to decide that it is appropriate to give access to a particular applicant but unreasonable to publish information in the document more widely.
  • a document that would have been exempt, if requested by anyone other than the applicant. This applies in cases where a document contains information about the applicant that does not clearly fall under one of the existing FOI disclosure log exceptions.

The determination was made for a period of five years, in identical terms to a determination that operated for two years from October 2011.

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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 Nine.

As a specialist FOI regulator, the OAIC has been uniquely able to develop a consistent jurisprudence that is informed by the pro-disclosure objects of the FOI Act and by the practical realities of FOI processing. The OAIC brings this practical approach to its decision making, and to its role in assisting agencies to meet their obligations under the FOI Act. This approach is exemplified by two IC reviews decided during the reporting period.

The issue in 'AP' and Department of Human Services [2013] AICmr 78 was whether the work involved in processing the FOI applicant's request would substantially or unreasonably divert DHS's resources from its other operations. DHS claimed that it would, based on its estimate of the work required. The OAIC obtained a sample of the documents in issue, and an OAIC officer assessed and edited that sample. Based on that assessment, a more reliable (and much lower) estimate was obtained. The IC review decision was that the amount of work involved in processing all of the documents would not substantially or unreasonably divert DHS's resources.

In 'BZ' and Department of Immigration and Border Protection [2014] AICmr 55, DIBP declined to provide the FOI applicant with a copy of the video footage that he had sought, blurred so as to obscure the face of a third party. DIBP said that it would cost almost $4000 to edit the footage. An OAIC officer prepared an edited copy of the footage in which the third party's face was obscured. This took less than an hour, using software that cost less than $100. The IC review decision was that access be granted to the edited footage.

In Cornerstone Legal Pty Ltd and Australian Securities and Investment Commission [2013] AICmr 71, the Information Commissioner foreshadowed that he would later write to the Australian Securities and Investments Commission (ASIC) to inquire what steps it had taken to implement observations of the Information Commissioner in the decision that ASIC should adopt a more flexible approach in responding to FOI requests for reports from external administrators. The matter was later taken up between the OAIC and ASIC, in writing and orally. ASIC confirmed that it had drawn the Information Commissioner's decision to the attention of its FOI decision makers, and that their practice is to examine requests individually having regard to the documents in question, and not apply a class exemption approach in dealing with such requests.

FOI Guidelines

Agencies must have regard to the Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (FOI Guidelines) 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.

Eight of the 15 parts of the FOI Guidelines were updated in 2013–14 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. The updates included:

  • revising Parts 3, 4, 7, 14 and 15 to reflect reforms to the Privacy Act 1988 (Privacy Act) that commenced on 12 March 2014
  • expanding the discussion in Part 2 about the definition of an 'official document of a minister'
  • amending Part 4 to provide new advice about public interest factors that may apply when considering whether to reduce or waive a charge
  • updating Part 5 to reflect new IC review decisions and legislative amendments impacting on exemptions
  • providing new guidance in Part 9 about internal review best practice.

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 2013–14 the OAIC published a new FOI agency resource on third party review rights. The resource explains when agencies may need to consult a person or business after receiving an FOI request for documents containing information about them. A series of flowcharts illustrates available review rights and applicable notification requirements.

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

Other guidance material

The OAIC published other guidance material including answers to commonly asked agency questions about:

  • how agency websites should explain the FOI Act and other access to information procedures
  • structuring Commonwealth contracts to comply with s 6C of the FOI Act
  • applying for the Information Commissioner to issue an IPS or FOI disclosure log determination under s 8(3) or s 11C(2).

FOI advice provided

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

  • agency obligations under s 6C (requirements for documents held by contractors)
  • exemptions
  • third party review rights
  • giving access to documents in the form requested by the applicant
  • consultation with state or territory Governments under s 26A
  • the IPS — including the obligation to publish details of statutory appointments under s 8(2)(d) and review requirements in s 9
  • how a delay in giving access to documents affects the timeframes for an FOI applicant to apply for internal and IC review
  • whether particular bodies constitute an 'agency' under the FOI Act
  • online accessibility obligations when providing notices to applicants
  • agency reporting obligations
  • presentations delivered at Information Contact Officer Network meetings
  • speeches on FOI by the Commissioners.

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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. This includes:

  • general information about the OAIC and the FOI process
  • fact sheets covering a range of issues including charges, exemptions, review rights and how to make a complaint.

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Other developments

Amendment of the FOI Act and Regulations

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

An amendment in the Privacy Amendment (Enhancing Privacy Protection) Act 2012 came into force on 12 March 2014 as part of the privacy law reforms discussed in Chapter Six. It replaced the definition of 'personal information' in s 4 of the FOI Act with a reference to the definition in the Privacy Act.

An amendment in the Rural Research and Development Legislation Amendment Act 2013 came into force on 13 December 2013. It replaced the reference to the Primary Industries and Energy Research Development Act 1989 in Part III of Schedule II with a reference to the Primary Industries Research and Development Act 1989.

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

Hawke Review of the FOI Act and AIC Act

Section 93B of the FOI Act and s 33 of the AIC Act required a review of both Acts to be undertaken two years after the 2010 FOI reforms. Dr Allan Hawke AC commenced that review in October 2012, and provided a report to Government that was tabled in Parliament on 2 August 2013.

In 2012–13, the Information Commissioner and the FOI Commissioner made two substantial submissions to Dr Hawke, which made 35 proposals for reform and included a comprehensive list of technical issues with both Acts.

Dr Hawke's report contained 40 recommendations, some agreeing with the Commissioners' proposals. In October 2013, the Commissioners wrote to the Attorney-General, supporting some of Dr Hawke's recommendations and suggesting alternatives to others. The attachment to the letter, which contained the Commissioners' views on each recommendation, was published on the OAIC website in November 2013.

Submission to the Australian Law Reform Commission review of copyright

In August 2013, the OAIC made a second submission to the Australian Law Reform Commission's inquiry into copyright and the digital economy. The submission responded to Discussion Paper 79 and explained issues arising in relation to the Copyright Act 1988 as it interacts with the IPS and disclosure log provisions in the FOI Act.

The OAIC submission addressed the issue of agencies unintentionally accruing copyright over unpublished third party material when publishing documents on their disclosure logs. The OAIC also noted that the Information Commissioner would potentially need to make a FOI disclosure log determination covering material where publication would have an unreasonable impact on copyright owners.


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Long text descriptions

Chart 8.1 IC reviews received by month

The chart shows the number of IC reviews received each month from July 2012 and still open at 30 June 2014.

MonthNumber receivedNumber still open
July 2012 41 4
August 2012 52 3
September 2012 54 4
October 2012 60 7
November 2012 39 4
December 2012 29 6
January 2013 38 6
February 2013 36 6
March 2013 36 7
April 2013 33 8
May 2013 56 19
June 2013 33 7
July 2013 70 7
August 2013 52 21
September 2013 30 6
October 2013 46 12
November 2013 46 19
December 2013 31 9
January 2014 50 18
February 2014 28 10
March 2014 42 16
April 2014 44 27
May 2014 51 43
June 2014 34 29

1031 IC reviews have been received since July 2012, 277 have been closed and 754 remain open.

Back to Chart 8.1

Chart 8.2 IC reviews closed by month

The chart shows the number of IC reviews closed each month by the OAIC from July 2012 until 30 June 2014.

MonthNumber closed
July 2012 31
August 2012 52
September 2012 27
October 2012 39
November 2012 51
December 2012 29
January 2013 20
February 2013 32
March 2013 49
April 2013 45
May 2013 26
June 2013 18
July 2013 25
August 2013 32
September 2013 32
October 2013 46
November 2013 47
December 2013 75
January 2014 60
February 2014 62
March 2014 49
April 2014 64
May 2014 60
June 2014 94

Back to Chart 8.2

Chart 8.3 FOI complaints received by month

The chart shows the number of FOI complaints received each month since July 2012 and still open at 30 June 2014.

MonthNumber receivedNumber still open
July 2012 14 0
August 2012 21 0
September 2012 12 0
October 2012 15 0
November 2012 15 0
December 2012 10 0
January 2013 11 1
February 2013 12 0
March 2013 13 0
April 2013 8 1
May 2013 8 0
June 2013 9 3
July 2013 11 1
August 2013 7 1
September 2013 6 4
October 2013 15 4
November 2013 4 2
December 2013 6 0
January 2014 9 3
February 2014 4 1
March 2014 2 2
April 2014 3 1
May 2014 3 2
June 2014 7 7

Back to Chart 8.3

Chart 8.4 FOI complaints closed by month

The chart shows the number of FOI complaints closed each month by the OAIC from July 2012 until 30 June 2014.

MonthNumber closed
July 2012 24
August 2012 15
September 2012 23
October 2012 12
November 2012 11
December 2012 12
January 2013 8
February 2013 15
March 2013 9
April 2013 7
May 2013 9
June 2013 4
July 2013 7
August 2013 5
September 2013 26
October 2013 13
November 2013 13
December 2013 7
January 2014 11
February 2014 11
March 2014 8
April 2014 6
May 2014 8
June 2014 4

Back to Chart 8.4

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