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Message from the Freedom of Information Commissioner, James Popple

Photograph of James Popple

The Freedom of Information Act 1982 (FOI Act) commenced operation on 1 December 1982. On 1 November 2010 it was amended in the most significant way since it was first enacted. Those amendments made it simpler and cheaper for people to request access to government documents. The emphasis of the FOI Act shifted from a reactive model of disclosure in response to individual requests, to a proactive model of publication of public sector information. The guiding principle underlying the amended FOI Act is that information held by the Government is to be managed for public purposes, and is a national resource.

At the same time that these reforms commenced, the Office of the Australian Information Commissioner (OAIC) was established. One of the OAIC's functions is to oversee the operation of the FOI Act. On 13 May 2014, the Australian Government announced that it intends to disband the OAIC. From 1 January 2015, the OAIC's Freedom of Information (FOI) merits review function will be transferred to the Administrative Appeals Tribunal (AAT); the AAT will be the first avenue of external merits review of FOI decisions, as it was prior to the 2010 reforms. The Commonwealth Ombudsman will resume sole responsibility for investigating FOI complaints. The Attorney-General's Department will take on the OAIC's function of issuing FOI guidance material for agencies and collecting and collating FOI statistics.

Data is now available for three full financial years (plus the first eight months) of the OAIC's operations. So, in addition to considering activity across the FOI system in 2013–14, this is an opportunity to reflect on the operation of the FOI Act since the 2010 reforms, and on how the OAIC has performed in the exercise of its FOI functions during that period.

Activity across the FOI system in 2013–14

Requests for access to documents

  • In 2013–14, Australian Government ministers and agencies received 28,463 FOI requests (up 14.1% on the previous year). 70.2% of all requests were received by three agencies: the Department of Immigration and Border Protection (DIBP), the Department of Human Services and the Department of Veterans' Affairs
  • The number of requests for personal information increased by 14.4%. These were 79.7% of all requests
  • The number of requests for other than personal information increased by 12.8%.

Practical refusal/request consultation processes

  • Agencies sent 124.7% more notices of intention to refuse a request because a 'practical refusal reason' existed, and 67.1% of those requests were subsequently refused or withdrawn (up 24.4%).

Determination of FOI requests

  • Agencies and ministers determined 23,106 requests (up 6.2%)
  • Access was granted, in full or in part, in 86.7% of all requests determined (down 2.7%)
  • One or more exemptions were claimed in 51.3% of all requests determined (down 4.0%). The most-claimed exemption is still the personal privacy exemption (in 20.6% of all requests determined).

Timeliness

  • 95.8% of all requests determined were processed within the applicable statutory time period (up 10.2%)
  • 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 44.4%. This suggests that some agencies are continuing to find it hard to meet their FOI obligations within their existing resources.

Amendment applications

  • Eight agencies received 2891 applications for amendment of personal records (up 1.3%), and one agency (DIBP) received 98.9% of them
  • Agencies determined 3303 amendment applications (up 14.2%). A decision to amend or annotate a person's personal record was made in response to 68.1% of applications (down 4.8%).

Internal review

  • Agencies made 542 decisions on internal review (up 11.8%), and affirmed the original decision in 54.8% of those reviews (up 6.8%).

Cost and charges

  • The reported cost attributable to agency compliance with the FOI Act was $41.837 million (down 7.5%)
  • Agencies recovered $239,628 in FOI charges. This is 0.6% of the total cost.

The OAIC's FOI activity

In 2013–14, the OAIC:

  • received 524 applications for Information Commissioner review (IC review) (up 3.4%) and closed 646 (up 54.2%)
  • received 77 FOI complaints (down 48.0%) and closed 119 (down 20.1%)
  • processed 2456 extension of time requests and notifications (up 7.2%).

Wherever possible, the OAIC aims to conciliate IC reviews. Of the IC reviews closed in 2013–14, 98 (15.2%) were concluded through published decisions by one of the three Commissioners, because conciliation was not possible. Ministers' and agencies' decisions were affirmed in 40.1% of those decisions, and set aside or varied in the remainder.

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, in 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 effect of the 2010 reforms

It is now possible to see the impact of the 2010 reforms upon the FOI landscape:

  • The number of FOI requests increased. Between 2009–10 (the last full year before the reforms) and 2013–14 the number of FOI requests made to Australian Government agencies and ministers increased by 31.9%: from 21,587 to 28,463. Over those four years there was a 108.9% increase in requests for information other than personal information. These requests are typically more complex to finalise than requests for personal information

  • The number of applications for external merits review increased greatly. In 2009–10, the AAT received 110 applications for review of FOI decisions. In 2011–12 (the first full year after the reforms), the OAIC received 456 applications for review; in 2013–14, it received 524 applications — increases of 314.5% and 376.4%, respectively, over the 2009–10 number. No doubt the principal reason for this increasing use of external merits review of FOI decisions was the reduction in cost to applicants. In 2009–10, the AAT's application fee was $682; there has been no application fee for review by the OAIC

  • The number of FOI complaints fluctuated. In 2009–10, the Commonwealth Ombudsman received 137 FOI complaints. In 2011–12, the OAIC and the Ombudsman together received 171 complaints; in 2013–14, they together received 127 complaints — an increase of 24.8% and a decrease of 7.3%, respectively, over the 2009–10 number

  • The cost to government increased. Between 2009–10 and 2013–14 the cost that agencies attributed to the FOI Act increased from $27.5 million to $41.8 million, an increase of 52.2% over four years.

The OAIC's FOI activity since its establishment

IC reviews

Between 1 November 2010 and 30 June 2014, the OAIC received 1663 applications for IC review and finalised 1347 or 81.0% of them. In its first twenty months of operation, the OAIC received significantly more applications for IC review than it finalised, resulting in a backlog. But the rate of finalisation improved with each reporting year until, in 2013–14, the OAIC finalised 23.3% more IC reviews than it received. As at 30 June 2013 the oldest unactioned IC review was 206 days old; as at 30 June 2014, the oldest such matter was 40 days old.

FOI complaints

Between 1 November 2010 and 30 June 2014, the OAIC received 439 FOI complaints and finalised 407 (or 92.7%) of them. In finalising complaints, the OAIC has made many recommendations, including 10 formal recommendations under s 86 of the FOI Act, for agency action. The OAIC also undertook an own motion investigation of the FOI processes of one agency. As it did with IC reviews, the OAIC received more FOI complaints than it finalised in its first twenty months of operation. But the rate of finalisation improved and the OAIC reached the tipping point (finalising more FOI complaints than were received) in 2012–13.

Other OAIC FOI activity

Between 1 November 2010 and 30 June 2014, in addition to this FOI review and complaint handling activity, the OAIC:

  • received and finalised 8028 requests for, or notifications of, extensions of time
  • declared six times that a person was a vexatious applicant under s 89K of the FOI Act
  • made and renewed a disclosure log determination under s 11C(2) of the FOI Act
  • published and updated clear and comprehensive FOI guidelines (250 pages), 16 fact sheets for the public, and over 30 detailed agency resources on processing times, calculating charges, administrative access, third party objections, anonymous requests, statements of reasons, redaction, FOI training, website publication, disclosure logs, sample letters and frequently asked questions
  • responded to 4758 phone enquiries and 1985 written enquiries about FOI
  • conducted a public consultation on FOI charges and prepared a lengthy report to Government in 2012
  • made two substantial submissions to the Hawke review of the FOI Act and the Australian Information Commissioner Act 2010
  • held 13 meetings of the Information Contact Officers Network, a forum for FOI and privacy officers across all agencies
  • provided 35 FOI reform training courses for Australian Government agencies and the Norfolk Island Administration.

Delay

The OAIC has been criticised for delays in its FOI processing, especially in finalising IC reviews. This criticism was valid for the first couple of years of the OAIC's operations. But, as noted above, there was a significant improvement in the OAIC's processing of IC reviews in each of 2012–13 and 2013–14. During the reporting period, the OAIC finalised 71.5% of IC reviews within 12 months of receiving them: 24.4% were open for fewer than 90 days; 16.8% were open for 91–180 days; 30.2% were open for 181–365 days.

There is, of course, still room for improvement. But these figures demonstrate that delay is no longer a significant issue. The OAIC is now processing FOI matters in a timely way. Inevitably, since the announcement of the impending disbandment of the OAIC, many OAIC staff have already obtained employment elsewhere. In its last few months, the OAIC will not be able to maintain the high level of productivity that it has attained over the last 12.

The future

The information presented in this Annual Report reflects continuing high levels of activity across all parts of the FOI system in 2013–14. That system generally performed well, and the OAIC has performed its FOI functions very well.

As at the end of the reporting period, the Government had not announced any changes to the FOI Act beyond those required to disband the OAIC and transfer responsibility for its FOI functions to other bodies. The OAIC has recommended a number of changes (detailed in its previous annual report) that would improve the FOI system as a whole, so that the underlying vision of the FOI Act — government information managed for public purposes as a national resource — can be fully realised.