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Chapter Seven — Freedom of information policy and compliance

Overview

In 2014–15, the Office of the Australian Information Commissioner (OAIC) undertook a range of activities in accordance with its statutory responsibilities under the Freedom of Information Act 1982 (Cth) (FOI Act) — conducting Information Commissioner reviews (IC reviews) and handling freedom of information (FOI) complaints, monitoring compliance with the FOI Act by agencies and ministers, and providing policy advice and guidance.

The OAIC finalised 482 applications for IC review, 64 FOI complaints, 4384 extension of time requests and notifications, and responded to 1900 enquiries.

During 2014–15, the OAIC significantly reduced the backlog of IC reviews and complaints that existed at the start of the reporting year. The OAIC implemented a streamlined IC review process focused on early resolution. At the beginning of 2014–15, the oldest un-actioned IC review application was 206 days old; at the end of the year, the oldest such matter was 40 days old. The OAIC published 128 IC review decisions and undertook one own motion investigation (OMI) into the FOI practices of the Department of Human Services (DHS).

The OAIC also provided a range of advice on FOI matters and updated 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).

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

As of 30 June 2015, the legislation to effect this change had not been enacted. The OAIC therefore undertook a full year of FOI functions, other than handling complaints, which have been handled by the Commonwealth Ombudsman since 1 November 2014, and FOI policy activities, which are currently undertaken by AGD.

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Responding to FOI enquiries

The OAIC Enquiries line (1300 363 992) provides general information about FOI issues and the OAIC's IC review function for the cost of a local call. The OAIC's enquiries team also responds to written enquiries, and assists enquirers that present to the office in person.

The OAIC is committed to responding to 90% of written enquiries within 10 working days. This benchmark was met in 2014–15, with 91% of FOI-related written enquiries responded to within 10 working days.

Table 7.1 OAIC FOI enquiries received over the last three years
Method of receipt
2012–13
2013–14
2014–15
Phone
1847
1316
1411
Written
602
587
484
In person
3
5
5
Total
2452
1908
1900

Table 7.2 provides a breakdown of the types of enquiries made to the OAIC during 2014–15. Approximately 81% of all enquiries 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. The total number of enquiries in Table 7.2 exceeds the total number of enquiries reported in Table 7.1 because an enquiry can raise more than one issue.

Table 7.2 Breakdown of issues in FOI enquiries received
Issue
Number of enquiries
Jurisdiction
910
General processes
845
Processing by agency
159
Agency statistics
66
Access to general information
24
Access to personal information
18
Information Publication Scheme
6
Amendment and annotation
3
Vexatious application
2

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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 Australian Information Commissioner (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
  • that requested documents do not exist or cannot be found
  • granting access to documents, where a third party has a right to object (for example, if a document contains their personal information)
  • about charges imposed in relation to access requests, including decisions refusing to waive or reduce charges
  • refusing to amend or annotate records of personal information.

An IC review provides a simple, practical and cost-efficient system of external merits review. The Information Commissioner does not simply consider the reasons given by the agency or minister, but determines the correct or preferable decision in all the circumstances. Information about the OAIC IC review process is available on its website.

In determining an IC review application, the Information Commissioner has the power to affirm, vary or set aside the decision under review. The full text of each IC review decision is available on the OAIC website and on the Australasian Legal Information Institute (AustLII) website: www.austlii.edu.au.

Most applications for review are finalised without a formal decision by the Information Commissioner. IC review applications are often resolved by agreement, for example, where the applicant chooses to withdraw their IC review application because the agency has addressed the applicant's concern by releasing information or providing a better explanation of its decision.

In 2014–15, the OAIC received 373 applications for IC review (down 28.6% on 2013–14). The OAIC closed 482 IC reviews in 2014–15 (down 25.4%).

Table 7.3 IC reviews received and closed by the OAIC
Year
2012–13
2013–14
2014–15
Received
507
524
373
Closed
419
646
482

Table 7.4 shows the outcome for all IC reviews finalised in 2014–15. The OAIC concluded 128 (26.6%) IC reviews through published decisions.

Table 7.4 Information Commissioner reviews by outcome
Information Commissioner decision
2012–13
2013–14
2014–15
s 54N — out of jurisdiction or invalid
66
59
37
s 54R — withdrawn
95
111
59
s 54R — withdrawn/conciliated
13
71
51
s 54W(a) — deemed acceptance of preliminary view or appraisal
2
27
26
s 54W(a)(i) — frivolous, vexatious, misconceived, lacking in substance, or not in good faith
86
170
87
s 54W(a)(ii) — failure to cooperate
33
62
19
s 54W(a)(iii) — lost contact
9
0
5
s 54W(b) — refer to AAT
17
41
61
s 54W(c) — failure to comply with direction
2
0
0
s 55F — set aside by agreement
0
1
0
s 55F — varied by agreement
0
1
2
s 55F — affirmed by agreement
0
1
2
s 55G — substituted
7
4
5
s 55K — affirmed by IC
58
40
53
s 55K — set aside by IC
28
53
52
s 55K — varied by IC
3
5
23
Total
419
646
482

The OAIC encourages resolution of IC reviews by agreement between the parties where possible. In 2014–15, three matters were finalised by agreement under s 55F (by way of written agreement between all parties to the IC review) and 69 IC reviews were finalised after the applicant withdrew their request for IC review, following action taken by the agency to resolve the applicant's concerns (such as by releasing information informally).

One of the OAIC's deliverables (see Chapter Two: Organisation overview) is to finalise 80% of all IC review applications within 12 months of receipt. In 2014–15, 71.2% of matters received were finalised within 12 months of receipt.

In 2014–15, the OAIC continued to streamline its processes for handling IC reviews to address historic delays and a backlog of matters on hand. On average, the OAIC finalised matters that were received in 2014–15 within three months of receipt. The OAIC also finalised a large number of matters that were the result of pre-existing backlogs. This is reflected in the statistics in Table 7.5, which shows that the OAIC finalised a large proportion of matters that were more than 12 months old, reflecting an overall reduction in the number of matters on hand and a reduction in the age profile of IC reviews.

Table 7.5 Time taken to close IC reviews
Months
2012–13
2013–14
2014–15
0–6
167
269
244
6–12
122
193
99
12 +
130
184
139
Total
419
646
482

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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. Following the Australian Government's decision to abolish the OAIC and the associated reduction in the OAIC's resources, the Commonwealth Ombudsman has handled FOI complaints since 1 November 2014.

In 2014–15, the OAIC received 31 FOI complaints, compared with 77 in 2013–14. This reflects the change in approach from November 2014. The OAIC finalised 64 complaints in 2014–15, and has no open FOI complaints.

Table 7.6 FOI complaints received and finalised
Year
2012–13
2013–14
2014–15
Received
148
77
31
Closed
149
119
64

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Own motion investigations

The Information Commissioner may undertake an FOI OMI, which may consider a single agency action or a systemic or recurring issue in an agency's FOI practices and processes.

On 17 December 2014, the Information Commissioner released an investigation report into FOI processing at DHS.

The investigation was opened in October 2014 in response to negative trends identified in DHS processing of FOI requests between 2011–12 and 2013–14. DHS had increased its use of the 'practical refusal' mechanism in the FOI Act from 33 occasions in 2011–12, to 777 occasions in 2013–14. There was also a decline in the number of FOI requests to which DHS gave access to documents in full, from 58% of requests in 2011–12 to 26% in 2013–14.

The Information Commissioner's investigation made 13 recommendations to:

  • promote a pro-disclosure culture
  • simplify the FOI experience for customers
  • improve administration of the practical refusal process.

DHS advised that it would implement each of the report's 13 recommendations. The OAIC acknowledges the positive approach taken by DHS during the investigation and in committing to implement the recommendations.

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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.

In 2014–15, the OAIC received 4393 extension of time requests, compared with 2437 in 2013–14. The OAIC finalised 4384 extension of time requests in 2014–15.

Table 7.7 Extension of time requests
Year
2012–13
2013–14
2014–15
Received
2271
2437
4393
Closed
2290
2456
4384

Table 7.8 shows the number of notifications and extension of time requests finalised in 2014–15, 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 7.8 Notifications and extension of time requests finalised
Request type
2012–13
2013–14
2014–15
s 15AA
1527
1898
3900
s 15AB
386
362
249
s 15AC
286
132
177
s 54B
0
1
0
s 54D
54
31
33
s 54T
37
32
25
Total
2290
2457
4384

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 internal review request

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 encourage less formal and more interactive engagement between agencies and applicants about the scope of FOI requests and the expected processing times. The notification process required under s 15AA ensures that agencies have generally given realistic consideration to the reasons for delay before seeking an extension of time.

In deciding whether to grant an extension, the OAIC considers the impact that this might have on an applicant. However, while this can be a consideration 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 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 2014–15, the Information Commissioner received two applications from agencies, under s 89K, seeking to have a person declared a vexatious applicant. Three applications were finalised in 2014–15: two declarations were made under s 89K and one application was refused.

These declarations are also published on the AustLII website as part of the Australian Information Commissioner (AICmr) series.

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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 website, 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 2014–15, the OAIC also began planning the delivery of the next phase of the 2011–16 IPS compliance review. Under s 9 of the FOI Act, agencies must, in conjunction with the Information Commissioner, complete a review of the operation in the agency of the 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 Australian Government's Budget announcement that the OAIC would be disbanded, 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 websites. 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 2014–15, 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.

Under s 11C(2) of the FOI Act, the Information Commissioner can determine that the disclosure log requirement does not apply to specific kinds of information.

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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.

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 four IC reviews decided during the reporting period.

Rita Lahoud and Department of Education and Training

In Rita Lahoud and Department of Education and Training [2015] AICmr 41 (16 June 2015), the issue for the Privacy Commissioner's consideration was whether a practical refusal reason existed. The Privacy Commissioner's decision considered:

  • the request consultation process
  • the Department of Education and Training's (DET) calculation of processing time, including sample based calculations
  • the onus an agency or Minister has under s 55D of the FOI Act of establishing that its decision is justified.

During the course of the IC review, DET undertook sampling, which indicated that the time it would take to process the request would be approximately half that which it had originally calculated. On the basis of the discrepancy between DET's decision and the sample estimate, and absent any submissions directed to the results of the sampling, the Privacy Commissioner decided that DET had not discharged its onus under s 55D. The Privacy Commissioner set aside DET's decision and in substitution, directed that DET must process the request and notify the applicant of its decision no later than 30 days after it receives the decision.

'FG' and National Archives of Australia

In 'FG' and National Archives of Australia [2015] AICmr 26 (13 April 2015), the main issue for the Information Commissioner's consideration was whether it would be unreasonable to disclose information that would identify a person who requested records that were within the 'open access period' for the purposes of the Archives Act 1983.

The Information Commissioner affirmed the internal review decision of the National Archives of Australia to refuse access to such information. The Information Commissioner's decision explored the factors that may be taken into account in deciding whether disclosure of personal information in a document would be unreasonable under s 47F and in determining whether disclosure would be contrary to the public interest test. In particular, the Information Commissioner highlighted at paragraph [2] that:

  • In deciding whether disclosure of personal information in a document would be unreasonable under s 47F, an agency may take into account any submission an FOI applicant chooses to make in support of their application as to their reasons for seeking access and their intended or likely use and dissemination of the information.
  • An agency may also take into account that the FOI Act does not limit or restrain the further dissemination of that information by the applicant. However, it is incorrect to proceed from the premise that disclosure under the FOI Act is tantamount to 'disclosure to the world at large', or that a document released to an FOI applicant will be available to any person who makes a request for that information in accordance with FOI Act procedures.
  • It would generally be unreasonable and contrary to the public interest to disclose personal identifying information of a person who has accessed a government service that is made freely available to members of the public on the basis and in the expectation that a person's use of the service will be kept confidential by the agency.

Jonathan Laird and Department of Defence

In Jonathan Laird and Department of Defence [2014] AICmr 144 (10 December 2014), the main issue for consideration was whether DNA sequencing information derived from bone samples assumed to be the remains of an HMAS Sydney II crewman was material exempt under s 47F (personal privacy exemption) of the FOI Act.

The Privacy Commissioner found that, given the Department of Defence (Defence) had not been able to identify the crewman from the remains, the identity of the crewman was not reasonably identifiable and therefore did not meet the definition of personal information for the purposes of the FOI Act. However, the Privacy Commissioner found the DNA sequencing information to be material conditionally exempt under s 47E (certain operations of an agency) and contrary to the public interest to disclose, on the basis that disclosure in this case could result in current service personnel withholding health and DNA information. The Privacy Commissioner gave substantial weight to Defence's management of its personnel, given the inherent danger that service personnel face in carrying out their duties.

'CN' and Australian Customs and Border Protection Service

In 'CN' and Australian Customs and Border Protection Service [2014] AICmr 87 (1 September 2014), the applicant applied for access to CCTV footage held by the Australian Customs and Border Protection Service (ACBPS), which recorded the applicant's questioning and examination at Sydney International Airport. ACBPS required the applicant to pay a charge of $3000 in relation to his request. The applicant paid the charge and received an edited copy of the CCTV footage.

The applicant sought IC review of ACBPS's decision. Regulation 5(1) of the Freedom of Information (Charges) Regulations 1982 provides that 'there is no charge for a request for, or for the provision of, access to a document that contains information that is the personal information of the applicant'.

The Privacy Commissioner found that, given the CCTV footage requested contains personal information about the applicant, the charge of $3000 should not have been imposed as per regulation 5(1).

These decisions are also published on the AustLII website as part of the Australian Information Commissioner (AICmr) series.

FOI guidelines

Agencies must have regard to the FOI guidelines when they are performing a function or exercising a power under the FOI 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.

In 2014–15, the OAIC updated eight of the 15 parts of the FOI guidelines 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 substantial updates included:

  • revising Part 1 to expand and restructure the discussion of FOI history, reforms and the OAIC
  • revising Part 2 to update and expand the discussion about the definition of an agency, the scope of the FOI Act and exempt and partly exempt agencies, mandatory request transfer provisions, IC reviews of ministerial decisions where there is a change of minister during a review, and incorporating the discussion of 'documents' (previously in Part 3)
  • integrating Parts 3 and 8 into a new consolidated Part 3, which deals with processing and deciding on requests for access
  • updating Part 4 to note that the obligation not to charge individuals for access to their own personal information also exists under Australian Privacy Principle (APP) 12 in the Privacy Act 1988 (Cth), and expanding the discussion of charge waiver/reduction on public interest grounds
  • updating Part 7 to reflect obligations under the APPs and the discussion of request transfer provisions
  • updating Part 9 to revise the discussion about internal review availability and third party review rights and explaining the discrepancy between internal review and IC review time frames for review of access grant decisions
  • revising Part 10 to update the discussion about the exercise of Part VII of the FOI Act functions to reflect OAIC practice and rights of third parties to participate in IC reviews, add new discussion of notification timeframe requirements and further discuss OAIC practices for referring matters to the AAT and making revised decisions under s 55G
  • revising Part 12 to provide expanded guidance about vexatious applicant declarations
  • updating Part 13 to revise the 'Review of agency IPS compliance' section
  • revising Part 14 to expand the discussion about accessibility and electronic redaction.

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 FOI guidelines.

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

Freedom of information resources

The OAIC publishes a range of resources to assist agencies in applying the FOI Act. Agency resources are advisory only and are not binding. The resources provide detailed advice and practical tips for agencies about applying the FOI Act and are available on the OAIC's website. The OAIC also publishes a large number of IC review decisions, which assist agencies and the public in understanding the application of the FOI Act.

A range of information and fact sheets are also available on the OAIC's website to assist the public in understanding and applying of the FOI Act.

The OAIC provides general advice to agencies and the public on the operation of the FOI Act through our Enquiries line.

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