Part 5 — Appendices

Publication date: 2018

Appendix A: Agency resource statement and resources for outcomes

Appendix B: Memoranda of understanding

Australian Bureau of Statistics

This year we continued to provide tailored privacy advice under an MOU with the Australian Bureau of Statistics (ABS).

For this service, we received $175,000.00 (GST exclusive) from the ABS.

Australian Digital Health Agency

This year we entered into an MOU with the Australian Digital Health Agency to provide support and assistance on privacy matters relating to both the Healthcare Identifiers Service (HI Service) and My Health Record system.

For the HI Service, these services included:

• Responding to privacy enquiries
• Conducting a privacy assessment
• Providing guidance material
• Monitoring and participating in digital health developments

For the My Health Record system, these services included:

• Responding to enquiries and complaints relating to the privacy aspects of the My Health Record system
• Investigating acts and practices that may have been a contravention of the My Health Record system
• Receiving data breach notifications and provided advice
• Conducting privacy assessments
• Providing guidance material for individuals and participants in the My Health Record system
• Liaising and coordinating on privacy related matters and activities with key stakeholders
• Preparing relevant communication and media materials
• Providing policy and legislation advice
• Monitoring and participating in digital health developments

For the 2017–18 financial year, the value of the MOU was $2,076,649.94 (GST exclusive).

For further information on our activities under this MOU, refer to the Annual Report of the Australian Information Commissioner’s Activities in Relation to Digital Health 2017–18 (available on the OAIC website no later than 28 November 2018).

Australian Human Rights Commission

The Australian Human Rights Commission (AHRC) continued to provide a number of corporate services to our office this year. The corporate services included financial, administrative, information technology and human resource related tasks. As a part of this, we also sub-let premises in Sydney from the AHRC.

For the corporate services we paid $932,206 (GST exclusive), and for the premises (including outgoings) we paid $1,071,711 (GST exclusive) to the AHRC.

ACT Government

As a part of our MOU with the ACT Government we continued to provide privacy services to ACT public sector agencies. These services included:

• Handling privacy complaints and enquiries about ACT public sector agencies in relation to the Information Privacy Act 2014 and its Territory Privacy Principles (TPPs)
• Providing policy and legislation advice
• Providing advice on data breach notifications, where applicable
• Carrying out a privacy assessment
• Providing access to the OAIC’s Privacy Professional Network meetings

For these services, we received $175,145.78 (GST exclusive) from the ACT Government.

For further information on our activities under this MOU, refer to the Memorandum of Understanding with the Australian Capital Territory for the Provision of Privacy Services 2017–18 Annual Report (available on the OAIC website no later than 1 November 2018).

Department of Education and Training

We continued to support the Department of Education and Training with their Student Identifier initiative, providing expert and timely advice on privacy matters. Our services to the department this year included:

• Developing the content for four editions of the TRANSPARENT privacy newsletter for publication on the Unique Student Identifier website
• Responding to enquiries and complaints relating to the privacy aspects of the Student Identifier initiative
• Conducting an online assessment of five Registered Training Organisations against APPs 1 and 5

For these services, we received $164,000.00 (GST exclusive).

Department of Home Affairs

Under our MOU with the Department of Home Affairs we conducted a Passenger Name Record (PNR) data related assessment which considered the use, disclosure and security of personal information in accordance with APPs 6 and 11. The assessment focused on the handling of PNR data in Home Affairs’ Connected Information Environment.

For these services, we received $65,000.00 (including GST).

Note: The agreement between Australia and the European Union (EU) on the processing and transfer of Passenger Name Record data states that ‘The Australian Customs and Border Protection Service has arrangements in place under the Privacy Act for the Information Commissioner to undertake regular formal audits of all aspects of Australian Customs and Border Protection Service’s EU-sourced PNR data use, handling and access policies and procedures’.

Department of Human Services

As a part of our ongoing work with the Department of Human Services (DHS), we provided them with general privacy services and support. In our work we:

• Provided policy advice to DHS on data-matching and other privacy enquiries
• Provided policy advice on the operation of the APPs with respect to various DHS activities and proposals

For these services, we received $220,000.00 (GST exclusive) from the Department of Human Services.

Appendix C: Privacy statistics

Privacy assessments and digital assessments

Appendix D: FOI statistics

This section contains information regarding:

• Requests for access to documents
• Applications for amendment of personal records
• Charges
• Disclosure log
• Review of FOI decisions
• Complaints about agency FOI actions
• Impact of FOI on agency resources
• Impact of Information Publication Scheme on agency resources

This appendix has been prepared using data collected from Australian Government agencies and ministers subject to the FOI Act, and separately from the Administrative Appeals Tribunal, the Commonwealth Ombudsman and from the OAIC’s own records. Australian Government agencies and ministers are required to provide, among other details, information about:

• The number of FOI requests made to them
• The number of decisions they made granting, partially granting or refusing access, and the number and outcome of applications for internal review
• The number and outcome of requests to them to amend personal records
• Charges collected by them[1]

The data given by ministers and agencies for the preparation of this appendix is published on data.gov.au.[2]

Requests for access to documents

Types of FOI requests

The term ‘FOI request’ means a request for access to documents made under s 15 of the FOI Act. Applications for amendment or annotation of personal records under s 48 are dealt with separately below.

A request for personal information means a request for documents that contain information about a person who can be identified (usually the applicant, although not necessarily). A request for ‘other’ information means a request for all other documents, such as documents concerning policy development and government decision making.

The FOI Act requires that agencies and ministers provide access to documents in response to requests that meet the requirements of s 15 of the FOI Act. The figures in this report do not take account of applications that did not satisfy those requirements.

Numbers of FOI requests received

Table D.1 provides a comparison of the number of FOI requests received in each of the past five reporting years including the percentage increase/decrease from the previous year.

FOI request numbers declined by 12.86% in 2017–18; the first year to record a decrease in the total number of FOI requests since 2009–10 (the financial year immediately prior to the 2010 FOI Act reforms).

In 2017–18, 28,199 (or 81.88% of all FOI requests) were for documents containing personal information. This is the same proportion as in 2016–17 (81.94%), but a decrease when compared with 2015–16 (86.55%).

Similarly, in 2017–18, 6,239 (or 18.12% of all FOI requests) were for ‘other’ information. This is the same proportion as in 2016–17 (18.06%), but an increase in the proportion when compared with 2015–16 (13.45%).

The decline in total FOI requests in 2017–18 was principally driven by the significant decreases in the number of FOI requests for personal information received by the Department of Home Affairs[3] (4,145 fewer) and the Department of Human Services (1,156 fewer) and FOI requests for other information received by the Northern Australian Infrastructure Facility (1,355 fewer).

The general decrease in requests for personal information can be largely attributed to an increased emphasis by agencies on providing access to personal information administratively, outside the FOI Act. The Department of Home Affairs attributes their 23.42% decline in the number of FOI requests for personal information in 2017–18 to the introduction in 2016–17 of an administrative access scheme for certain personal information requests, coming after several years of very large increases in FOI requests for personal information by visa applicants.

The Northern Australian Infrastructure Facility was created on 1 July 2016. In 2016–17, as the result of a public campaign which encouraged members of the public to make FOI requests to the facility, it received 1,367 FOI requests, most of which were made within a two week period in May 2017. In 2017–18, the facility only received 12 FOI requests.

Despite the overall decrease in FOI requests in 2017–18, some agencies reported receiving significantly more FOI requests than in previous years. As a result the National Disability Insurance Agency, Comcare and IP Australia entered the ‘top 20’ agency FOI requests list this year.

Number of FOI requests received by agency/minister

In 2017–18, the Department of Home Affairs, the Department of Human Services and the Department of Veterans’ Affairs together continued to receive the majority of FOI requests (68.75% of the total). Nearly all of those requests (96%) are from individuals seeking access to personal information.

The 20 agencies that received the largest number of requests in 2017–18 are shown in Table 9.2, with a comparison to the number of requests each received in 2016–17.

As noted above, the Department of Home Affairs received significantly fewer FOI requests in 2017–18, and its proportion of the total number of requests received by all Australian Government agencies declined from 46.10% in 2016–17 to 41.17% in 2017–18. This included a 23.42% decrease in requests for personal information (from 17,702 in 2016–17 to 13,557 in 2017–18). However the Department of Home Affairs experienced a 16.77% increase in ‘other’ (non-personal) requests.

The Department of Human Services received 1,219 fewer requests in 2017–18 (down 16.35% from 2016–17). However, the Department of Veterans’ Affairs received more – 3,261 requests, 5.36% more than in 2016–17. The Administrative Appeals Tribunal experienced a 6.78% decrease in requests. The Australian Taxation Office received 1,254 requests, which was 12.57% more than in 2016–17.

As noted above, the total number of requests received by Australian Government agencies decreased by 12.86% in 2017–18. However among the 20 agencies that received the most FOI requests (90.47% of all FOI requests in total), 16 agencies recorded increases in the number of requests received. In particular, the Australian Transaction Reports and Analysis Centre and the National Disability Insurance Agency experienced very significant increases (150.60% and 284.71% respectively). Other agencies to experience significant increases in request numbers include Comcare (68.89%), the Department of Prime Minister and Cabinet (39.39%), the Immigration Assessment Authority (33.33%), the Department of Defence (28.39%), the Department of Jobs and Small Business[4] (26.59%), the Department of Foreign Affairs and Trade (21.62%) and IP Australia (18.75%).

Because of substantial increases in request numbers, some agencies reported engaging contracted service providers to assist with FOI request processing to meet demand.

Three agencies that appeared in last year’s top 20 agencies experienced decreases in the numbers of FOI requests in 2017–18 and no longer appear in the top 20: the Department of Treasury (a 32.14% decrease), the Department of Social Services (29.94% fewer requests) and the Department of Finance (a 7.55% reduction).

FOI requests finalised

Agencies and ministers commenced 2017–18 with a significant number of on hand FOI requests requiring decision (42.89% more than in 2016–17). However the combination of a reduction in the number of requests received during the year (12.86% less) and an increase in requests withdrawn by applicants (32.39% more) resulted in the number of requests on hand at the end of the year being 47.23% less than at the end of 2016–17.

Reasons for the higher number of requests being withdrawn during the year may include:

• Increased use of administrative access schemes to provide access to documents outside the FOI Act
• Documents are already available on agency disclosure logs
• Information is published on agency IPS entries and in annual reports
• Applicants accept verbal assurances that no documents exist within the scope of their request and withdraw
• Requests being sent to the wrong agency in the first instance which are then withdrawn when sent to the correct agency[5]

Although there has been an overall decline in the number of FOI requests transferred from one agency or minister to another in 2017–18 (6.92% less), 50.33% of all transfers were made by two agencies: the Administrative Appeals Tribunal and the Immigration Assessment Authority. Both bodies review certain administrative decisions of agencies and ministers. Applicants for review of decisions by these two agencies frequently seek to access documents held by the agency or minister that made the reviewable decision. As a result, these requests are transferred to the relevant agency or minister for processing.

It is worth noting that although only 18.12% of all FOI requests are requests for access to non-personal (‘other’) information, this category of request was withdrawn 30.77% more often than personal requests in 2017–18.

The percentage of requests granted in full decreased from 55.47% of all requests in 2016–17, to 49.81% in 2017–18. While the number of requests granted in part remained steady at 34%, the number of requests refused (which includes requests refused because the documents sought do not exist or cannot be found and practical refusals, as well as when exemptions have been applied) increased from 9.95% in 2016–17 to 16.19% this year.

A reason for the significant increase in the number of FOI requests being refused in 2017–18, is accounted for by the Northern Australian Infrastructure Facility refusing 1,332 requests under s 24 of the FOI Act (practical refusal). These requests to the agency were received over a two week period in 2016–17, following a public campaign which included a specific online FOI request form. However, it is worth noting that even if the Northern Australian Infrastructure Facility had not made those decisions there would still have been an increase in the proportion of decisions refused in 2017–18 (11.99%).

Table D.5 lists the top 20 agencies by the number of FOI decisions they made. The Attorney-General’s Department and the Department of Education and Training are on the list of the top 20 agencies in terms of requests received, but not in the top 20 of decisions made.[11] In contrast, the Civil Aviation Safety Authority and the Northern Australian Infrastructure Facility feature in the top 20 by decisions made, but not by requests received.

There are differences in the outcome of FOI requests between those agencies processing the largest number of requests in 2017–18. Thirteen of these agencies refused access to documents at levels higher than the average across all Australian Government agencies (16.19%). As a rule, these agencies process proportionally higher numbers of ‘other’ (non-personal) FOI requests. Agencies processing higher proportions of FOI requests for personal information have lower refusal rates (see for example, the Department of Home Affairs, the Department of Human Services, the Department of Veterans’ Affairs and the Administrative Appeals Tribunal).

Use of exemptions

Table D.6 shows how Australian Government agencies and ministers claimed exemptions under the FOI Act when processing FOI requests in 2017–18. More than one exemption may be applied in processing an FOI request.

The personal privacy exemption in s 47F of the FOI Act remains the most claimed exemption. It was applied in 42.68% of FOI requests to which an exemption was applied in 2017–18 (less than in 2016–17 when it was claimed in 47.90% of all matters in which an exemption applied). The next most claimed exemptions were s 47E (certain operations of agencies — 19.75%, up from 18.47% in 2016–17), s 37 (documents affecting enforcement of law and protection of public safety — 9.17%, up from 2016–17 when it was 6.60% of all exemptions applied), s 38 (documents to which secrecy provisions of enactments apply — 6.64% slightly up on 2016–17’s 6.16%) and s 47C (deliberative processes — 5.20% compared with 4.78% in 2016–17).

No agency reported applying s 45A (Parliamentary Budget Office documents) or s 47J (The economy) in 2017–18 (s 45A was applied in three requests in 2016–17). Less reliance was placed on s 45 (material obtained in confidence) in 2017–18 (when it comprised 1.55% of all exemptions applied) than in 2016–17 (2.17%) however s 47B (Commonwealth-State relations) was applied more frequently than in 2016–17 (165 times compared to 122).

Use of practical refusal

Section 24AB of the FOI Act sets out that a ‘request consultation process’ must be undertaken if a ‘practical refusal reason’ exists (s 24AA). A practical refusal reason exists if the work involved in processing the FOI request would substantially and unreasonably divert the agency’s resources from its other operations, or the FOI request does not adequately identify the documents sought.

The request consultation process involves the agency sending a written notice to the FOI applicant advising them that the agency intends to refuse the request and providing details of how the FOI applicant can consult the agency. The FOI Act imposes an obligation on the agency to take reasonable steps to help the FOI applicant revise their request so that the practical refusal reason no longer exists.

Table D.7 provides information about how Australian Government agencies and ministers engaged in request consultation processes under s 24AB of the FOI Act in 2017–18 and the outcome of those processes.

Agencies sent 163.28% more notices of an intention to refuse a request in 2017–18 than in 2016–17 (which was a year in which there had been a 15.66% increase over the previous year).

In 2017–18, 84.25% of the FOI requests subject to a notice of intention to refuse were subsequently refused or withdrawn: the proportion was 66% in 2016–17 and 70.3% in 2015–16.

In 2017–18, 20.71% of personal FOI requests for which a notice of an intention to refuse for a practical refusal reason were subsequently processed. This is a decline on 2016–17, when 32.85% of personal FOI requests were subsequently processed. Requests for ‘other’ (non-personal) information were more likely to be refused in 2017–18 following the issuing of a notice of an intention to refuse a request for a practical refusal reason. In 2017–18, only 11.26% of such requests were subsequently processed (in 2016–17, 35.38% were subsequently processed).

However, as noted in previous sections, the Northern Australian Infrastructure Facility refused 1,332 FOI requests in 2017–18 under the practical refusal provisions. This large number of refusals increased both the number of notices issued and the number of requests subsequently refused or withdrawn in 2017–18. However if these decisions are disregarded as anomalous, there was still a 78.22% increase in the number of notices issued in 2017–18 by other agencies (2,791) when compared to 2016–17 (1,566).

Further, the proportion of requests subsequently processed following a notice of intention to refuse being issued has decreased to 15.75% in 2017–18 (from 34% in 2016–17). This may indicate that the assistance agencies gives applicants during the request consultation process is not sufficient to enable applicants to refine their request to remove the practical refusal reason, or that applicants are not willing to refine their request so that they can be processed.

If the data relating to the Northern Australian Infrastructure Facility is disregarded, most of the increase in practical refusal processing in 2017–18 can be attributed to two agencies: the Department of Home Affairs and the Department of Human Services. In the previous reporting period, the Department of Home affairs and the Department of Human Services respectively issued 590 and 255 notices of an intention to refuse a request. Those figures rose to respectively 1,042 and 987 in 2017–18, a 76.61% increase for the Department of Home Affairs and 287.06% for the Department of Human Services. Together they issued almost half (49.19%) of all practical refusal notices issued in 2017–18.

Time taken to respond to FOI requests

Agencies and ministers have 30 days within which to make a decision under the FOI Act. The FOI Act allows for the statutory timeframe to be extended in certain circumstances.[13]

If a decision is not made on an FOI request within the statutory timeframe (including any extension period) then s 15AC of the FOI Act provides that a decision refusing access is deemed to have been made. Nonetheless, agencies can and are encouraged to continue to process a request that has been deemed to have been refused.

In 2017–18, 84.86% of all FOI requests determined were processed within the applicable statutory time period: 84.53% of all personal information requests and 86.35% of non-personal requests. This represents a significant improvement in response time from 2016–17 (when 57.62% were decided within time).

Table D.9 shows those agencies and ministers that in 2017–18 had one or more FOI requests that took more than 90 days beyond the applicable statutory time period to finalise.

While the Department of Home Affairs’ compliance with statutory timeframes was 74.88%, a reduction in the number of requests received and improved procedures has resulted in a significant improvement in the department’s timeliness in 2017–18 compared to 2016–17 when it finalised only 25.22% within the statutory time period.

Five agencies/ministers took longer than 90 days after the applicable statutory period had expired to process more than 10% of their FOI requests; the Department of Home Affairs, the Prime Minister, the Treasurer, the Minister for Justice, and the Australian Film, Television and Radio School.

A further six agencies/ministers took more than 90 days after expiry of the applicable statutory period to process more than 5% of their FOI requests.

A significant number of the FOI requests finalised more than 90 days after the expiry of the applicable statutory period were requests for access to personal information (1,952 requests, or 92.95% of the total requests finalised more than 90 days after the statutory period had expired). Such lengthy delays in providing access to personal information may have significant impacts on the rights and opportunities of the relevant individuals. The OAIC will work with the relevant agencies and ministers’ offices to improve timeliness in 2018–19.

Applications for amendment of personal records

Section 48 of the FOI Act confers a right on a person to apply to an agency or to a minister to amend a document, to which lawful access has been granted, when the document contains personal information about the applicant:

• That is incomplete, incorrect, out of date or misleading; and
• That has been used, is being used, or is available for use by the agency or minister for an administrative purpose

In 2017–18, 510 amendment applications were received by 14 agencies (none were received by ministers). This is a 53.64% decrease in applications from 2016–17 (when 1,100 applications were received). This decrease is entirely attributable to a significant (56.75%) decrease in the number of amendment applications received by the Department of Home Affairs (1,052 in 2016–17 and 455 in 2017–18).

The Department of Home Affairs advises that the reason for the decrease in applications in 2017–18 is that it has focussed on responding administratively, outside the FOI Act, to applicants seeking to amend their personal records. This includes introducing an online portal to streamline the process for applicants and has resulted in a reduction in the number of amendment applications in 2017–18.

Despite experiencing a large decrease in applications, the Department of Home Affairs still accounted for 89.22% of all amendment applications received during the year (in 2016–17 the Department of Home Affairs accounted for 95.64% of all amendment applications).[14]

543 amendment applications were decided in 2017–18. This is 581 less than in 2016–17 when 1,124 applications were decided (a 51.69% decline). This reflects the decrease in the number of applications received during the reporting period.

Table D.10 compares the decision making for amendment applications with last year. In 2017–18, a decision was made to amend or annotate a person’s personal record in 72.28% of the decided applications, an increase on the proportion granted in 2016–17 (67.97%). As noted above, overall trends in decision making with respect to amendment applications are largely determined by decisions made by the Department of Home Affairs (which granted 75.46% of applications in 2017–18 and 68.78% in 2016–17).

Time taken to respond to amendment applications

An agency is required to notify an applicant of a decision on their application to amend personal records as soon as practicable, but in any case not later than 30 days after the date the request is received, or a longer period as extended under the FOI Act.

In 2017–18, 85.82% of all amendment applications were decided within the applicable statutory time period. This is a slight decrease in timeliness from 2016–17 (86.55%). The OAIC will work with the relevant agencies and ministers’ offices to improve timeliness in 2018–19.

Charges

Section 29 of the FOI Act provides that an agency or minister may impose charges in respect of FOI requests, except requests for personal information, and sets out the process by which charges are assessed, notified and adjusted.

Table D.11 shows the amounts collected by the 20 agencies that collected the most in charges under the FOI Act in 2017–18. These top 20 agencies collected 82.55% of all charges collected by Australian Government agencies and ministers.

In 2017–18, agencies notified a total of $383,531 in charges, with respect to 1,029 FOI requests, but collected only $115,863 (30.21% of the total notified). This difference is due to agencies exercising their discretion under s 29 of the FOI Act not to impose the whole charge, or applicants withdrawing their FOI request and not paying the notified charge.

Agencies notified and collected significantly less in charges in 2017–18 than in the previous year. In 2016–17, agencies notified a total of $505,394 in charges with respect to 1,317 requests, and collected $147,043 (29.09% of the total notified). The percentage decrease in the notification and collection amounts for 2017–18 when compared with 2016–17 are 24.11% and 21.21% respectively.

Disclosure log

All Australian Government agencies and ministers subject to the FOI Act are required to maintain an FOI disclosure log on a website. The disclosure log lists information that has been released to FOI applicants, subject to some exceptions (such as personal or business information). Information about agency and ministerial compliance with disclosure log requirements has been collected since 2012–13.

A total of 108 agencies and ministers reported information about their disclosure log activity in 2017–18. Collectively, they reported 1,104 new entries on disclosure logs during 2017–18; including documents available for download directly from the agency or minister’s website in relation to 624 requests, documents available from another website in relation to 70 requests, and 410 entries in which the documents are available by another means (usually upon request).

The total number of new entries published on disclosure logs in 2017–18 is 15.24% higher than 2016–17, when 958 entries were added. This increase occurs in the context of a 13% decrease in the number of full or partial access grant decisions made in 2017–18. This reflects a greater understanding by agencies of their obligation to publish documents released in response to FOI requests.

However, since 2015–16 the proportion of documents which members of the public can access directly from agency websites has declined from 66.87% to 56.52%. As explained in the FOI Guidelines, publication of documents directly through the disclosure log, rather than providing a description of the documents and how they can be obtained on request from the agency or minister, is consistent with the FOI Act object of facilitating public access to government information.[15] In 2018–19, the OAIC intends revising Part 14 of the FOI Guidelines (Disclosure Log) to emphasise the benefit to the community, and to agencies, of making documents released in response to FOI requests readily available on agency websites.

In 2017–18, agencies and ministers reported a total of 37,994 unique visits to disclosure logs and 55,257 page views, which represents an 18.42% increase in unique visits but a 7.50% decrease in total page views reported in 2016–17. This appears to indicate that members of the public are increasingly accessing specific documents, rather than browsing disclosure logs to discover content. This may be the result of the increasing use of search engines to find relevant documents.

Review of FOI decisions

Under the FOI Act, an applicant who is dissatisfied with the decision of a minister or an agency on their initial FOI request has several avenues of review. The applicant can seek internal review with the agency or minister or external merits review by the Information Commissioner (IC review). Information Commissioner decisions under section 55K are reviewable by the Administrative Appeals Tribunal (AAT), then AAT decisions may be appealed on a question of law, to the Federal Court. In addition, an applicant may make a complaint at any time to the Information Commissioner about an agency’s actions under the FOI Act, or alternatively has the ability make a complaint to the Commonwealth Ombudsman.

Third parties who have been consulted in the FOI process also have review rights if an agency or minister decides to release documents contrary to their submissions. Consultation requirements apply for state governments (s 26A), commercial organisations (s 27) and private individuals (s 27A).

Internal review

Although there is no requirement to do so, the Information Commissioner recommends that a person apply for internal review by the agency who made the FOI request before applying for IC review.

In 2017–18, 797 applications were made for internal review of FOI decisions: 12.41% more than in 2016–17 (709). This increase is notable because it occurs in the context of a 12.86% (4,081) decline in overall FOI request numbers in 2017–18.

Of the 797 applications for internal review, 463 (58.09%) were for review of decisions made in response to requests for personal information and 334 (41.91%) were for review of decisions on other (non-personal) requests.

Agencies finalised 733 decisions on internal review in 2017–18: 11.23% more than in 2016–17 (659). Of these, 351 (47.89%) affirmed the original decision, 72 (9.82%) set aside the original decision and granted access in full, 217 (29.60%) granted access in part, nine (1.23%) granted access in another form, 14 (1.91%) resulted in lesser access and applicants withdrew 52 applications (7.09%) without concession by the agency. Agencies reduced the charges levied as a result of internal review in 18 cases (2.46%).

There were 10 applications for internal review of decisions on amendment applications, 60% fewer than in 2016–17 (when there were 25 applications). Agencies made nine internal review decisions on amendment applications: in seven (77.78%) the original decision was affirmed and in two (22.22%) it was set aside. In 2016–17, 70.83% of original decisions were affirmed and 29.17% set aside.

Information Commissioner review

Table D.12 provides a breakdown by agency and minister of IC review applications received in 2017–18, where the agency or minister was the subject of more than one IC review. In total, there were 801 applications for IC review (up 27%).

In general, it is expected that the agencies which receive the most FOI requests will have the most IC review applications lodged against their decisions. In 2017–18, 14 of the agencies most appealed against also appear in the list of top 20 agencies in terms of the number of FOI requests received.

However some agencies which do not receive large numbers of FOI requests are the subject of a comparatively large number of IC review applications given their FOI caseload. In 2017–18, these agencies included the Office of the Registrar of Indigenous Corporations (eight IC review applications, 23 FOI requests received – 34.78% of all requests), the Australian Sports Anti-Doping Authority (39 requests, 11 IC review applications – 28.21%), the Australian Broadcasting Corporation (41 requests, 10 IC reviews – 24.39%), the Department of Communications and the Arts (54 requests, 10 IC reviews – 18.52%) and the Department of the Prime Minister and Cabinet (276 requests, 28 IC reviews – 10.15%). The FOI case load of these agencies is characterised by a large proportion of non-personal requests (four of the listed agencies received only non-personal FOI requests in 2017–18).

There was an 18.45% increase in the number of IC reviews finalised by the OAIC in 2017–18 when compared with 2016–17 (515 in 2016–17 and 610 in 2017–18).

In 2017–18, 487 IC reviews were finalised without a formal decision being made under section 55K of the FOI Act (79.84% of all IC reviews finalised during the year). This is a very similar percentage as in 2016–17 (79.81%).

The number of IC review applications declined under section 54W[16] of the FOI Act decreased as a percentage of the total IC reviews finalised in 2017–18. In 2016–17, 141 applications (or 27.38% of the total applications finalised) were declined under section 54W; in 2017–18, this decreased to 26.89% of the total applications finalised (164 in total).

Of the 164 IC review applications declined under section 54W of the FOI Act in 2017–18, 48.17% were declined under section 54W(a)(i) on the basis that the Information Commissioner was satisfied that the IC review application was frivolous, vexatious, misconceived, lacking in substance, or not made in good faith. Of all applications declined under section 54W, 35.98% were declined under section 54W(a)(ii) (failure to cooperate), 6.10% under section 54W(a)(iii) (lost contact) and 9.76% under section 54W(c) (failure to comply).

In 2017–18, the Information Commissioner[17] made 123 decisions under section 55K of the FOI Act, a 20.59% increase on 2016–17 when 102 formal decisions under section 55K were made. Of the 123 decisions, 68 affirmed the decision under review (55.28%), 45 set aside the reviewable decision (36.59%) and 10 decisions were varied (8.13%). In 2016–17, the Information Commissioner affirmed 61.76% of decisions, set aside 22.55% and varied 15.69%.

Of the 68 decisions affirmed by the Information Commissioner, nine (13%) had been revised by the agency or minister under section 55G of the FOI Act during the IC review, giving greater access to the documents sought. In 18% of the decisions set aside and substituted by the Information Commissioner (eight decisions), the agency had withdrawn certain exemption contentions during the course of the IC review.

The percentage of applications received by the OAIC which were out of jurisdiction or invalid increased from 6.60% of all applications in 2016–17, to 13.28% in 2017–18.

Administrative Appeals Tribunal review

An application can be made to the Administrative Appeals Tribunal (AAT) for review of the following FOI decisions:

• A decision of the Information Commissioner on an IC review
• An IC reviewable decision (that is, an original decision or an internal review decision), but only if the Information Commissioner decides, under s 54W(b), that the interests of the administration of the FOI Act make it desirable that the IC reviewable decision be considered by the AAT

In 2017–18, 30 applications for review of FOI decisions were made to the AAT. This is a 23.08% decrease on the 39 applications made in 2016–17.

Table D.14 provides a breakdown by agency of applications to the AAT in FOI matters in 2017–18. This data has been provided by the AAT.

In 2017–18, three agencies sought review in the AAT of decisions made by the Australian Information Commissioner under s 55K of the FOI Act – the Department of Home Affairs (three applications), the Department of Defence and the Department of Prime Minister and Cabinet (one application each).

Thirteen applications remain outstanding with the AAT at the end of 2017–18.

Table D.15 shows the outcome of the 33 FOI reviews finalised by the AAT in 2017–18. This data has been provided by the AAT.

Of the 33 FOI reviews finalised by the AAT, 12 (36.36%) resulted in a published decision in 2017–18.

The AAT affirmed the agency’s decision in five (15.15%) of the 33 AAT reviews, compared with eight (23.53%) in 2016–17.

Of the 33 FOI reviews finalised in 2017–18, 10 were applications made by Australian Government agencies following decisions made by the Information Commissioner under s 55K of the FOI Act. Of these 10 reviews, four applications were set aside (by decision), three applications were withdrawn by the agency and three were set aside by consent.

Federal Court

In 2017–18 the Information Commissioner referred a linked set of two questions of law to the Federal Court under s 55H of the FOI Act. In its application, the Information Commissioner sought to clarify the proper construction of s 55G of the FOI Act during the course of an IC review. On 9 April 2018, the Federal Court (Griffiths J) held that the determination of the referred questions of law did not involve a ‘matter’ within the meaning of Chapter III of the Australian Constitution and therefore dismissed the Information Commissioner’s application (see Australian Information Commissioner v Elstone Pty Limited [2018] FCA 463).

Also during 2017–18 a Full Court considered an appeal against a decision by Tracey J (Giddings v Australian Information Commissioner [2017] FCA 667), which remitted an application for IC review to the Information Commissioner to be heard and determined according to law. The Court dismissed the application on 21 December 2017 (see Giddings v Australian Information Commissioner [2017] FCAFC 225).

Complaints about agency FOI actions

Complaints to the Information Commissioner

Information about the Information Commissioner’s handling of FOI complaints is provided on page 83.

Complaints to the Commonwealth Ombudsman

Complaints about an agency’s handling of FOI requests are primarily dealt with by the OAIC. The Commonwealth Ombudsman may investigate complaints related to administration of FOI matters when it would be more appropriate or effective, for example, when the FOI complaint is one part of a wider grievance about an agency’s actions.

In 2017–18, the Commonwealth Ombudsman received 49 complaints about FOI matters, 15.52% less than the 58 complaints it received in 2016–17. The Commonwealth Ombudsman transferred 30 complaints to the OAIC under s 6C of the Ombudsman Act 1976 during 2017–18.

Impact of FOI on agency resources

To assess the impact on agency resources of their compliance with the FOI Act, agencies are asked to estimate the hours that staff spent on FOI matters and the non-labour costs directly attributable to FOI, such as legal and specific FOI training costs. Agencies submit these estimates annually. Agency estimates may also include FOI processing work undertaken on behalf of a minister’s office.

Agencies are also asked to report their costs of compliance with the Information Publication Scheme (IPS). To facilitate comparison with the information in previous annual reports, IPS costs are not included in this analysis of the cost of agency compliance with the FOI Act, but are discussed separately below.

The total reported cost attributable to processing FOI requests in 2017–18 was $52.19 million, a 16.52% increase on the previous year’s total of $44.79 million. This increase occurred in the context of 12.86% fewer FOI requests being received and a 6.92% decrease in the number of FOI requests determined in 2017–18.

The reason for the increase in overall cost of FOI activity is a 26.99% increase in the average amount of time taken to process each FOI request (from 2.26 days in 2016–17 to 2.87 days 2017–18). More information about staff time spent processing FOI requests is set out below.

Table D.16 sets out the average cost per FOI request determined (granted in full, in part or refused) compared to last year. The average cost per request determined in 2017–18 was $1,648 (up 25.23% from 2016–17).

Staff costs

All agencies are asked to supply information about staff resources allocated to FOI.

Agencies provided estimates of the number of staff hours spent on FOI to enable calculation of salary costs (and 60% related costs) directly attributable to FOI request processing. A summary of staff costs is provided in Table D.18, based on information provided by agencies and ministers and is calculated using the following median base annual salaries from APSC public information:[20]

• FOI contact officer (officers whose duties included FOI work) $76,561[21]
• Other officers involved in processing requests:
  • Senior Executive Service (SES) officers (or equivalent) $189,353[22]
  • APS Level 6 and Executive Levels (EL) 1–2 $111,633[23]
  • Australian Public Service (APS) Levels 1–5 $61,970[24]
• Minister’s office
  • Minister and advisers $138,195[25]
  • Minister’s support staff $61,970[26]

Total estimated staff costs in 2017–18 were $49.63 million, 17.18% more than in 2016–17. By contrast, in 2016–17, total estimated staff costs rose by 9.12% over the previous year.

Non-labour costs

Non-labour costs directly attributable to FOI are summarised in Table D.19, including the percentage change from the previous year. The total in 2017–18 was $2.56 million, a 5.06% increase on the previous year.

The largest increase in non-labour costs in 2017–18 is in relation to the ‘other’ category of expenses and is primarily the result of the Australian Federal Police and the Department of Home Affairs both reporting that they contracted service providers to assist with FOI processing during 2017–18 ($153,827 and $140,152 respectively).

There was also a 32.35% increase in costs associated with FOI training in 2017–18. This increase is the result of many agencies needing to engage new staff to process an increasing FOI workload.

Average cost per FOI request

The average staff days per request in 2017–18 differed significantly across agencies from 0.019 (Airservices Australia) to 19.21 days (the Department of Defence). The overall average was 2.88 days. The average was 2.26 days in 2016–17.

The average cost per request also differed significantly across agencies from $12.83 to $18,095.92. The overall average was $1,515.37, a 33.71% increase on the previous year’s average of $1,133.31.

The Department of Defence has a high average cost per request. This is because it has the highest average staff days per request and its overall costs were higher than other agencies because of costs associated with training staff in 2017–18 ($113,766).

As noted earlier, the Northern Australian Infrastructure Facility finalised 1,340 FOI requests in 2017–18, but received only 12 requests during the year. No other agency experienced such a large difference in request numbers between 2016–17 and 2017–18. If the facility’s total FOI spend is divided by the number of FOI requests it finalised, the average cost per request in 2017–18 would only be $162.05.

Impact of the Information Publication Scheme on agency resources

Agencies are required to provide information about the costs of meeting their obligations under the IPS, which commenced on 1 May 2011.

The total reported cost attributable to compliance with the IPS in 2017–18 was $964,637, 126.99% more than in 2017–16 ($424,966). This increase may be largely attributable to the OAIC conducting a survey of agencies’ IPS compliance. The final report on IPS compliance is expected to be published in the first half of 2018–19.

Staff costs

Table D.21 shows the total reported IPS staffing across Australian Government agencies compared to last year.

Non-labour costs

Reported IPS non-labour costs for all agencies totalled only $10,326 in 2017–18 and this was largely the result of one agency (the Australian Radiation Protection and Nuclear Safety Agency) engaging an external auditor to audit their IPS.

Appendix E: Acronyms and abbreviations

Appendix F: Correction of material errors

Correction of errors in the Office of the Australian Information Commissioner Annual Report 2016–17.

Page 18 — Privacy highlights number received

For 2016–17 the number of privacy complaints received should be 2,495, not 2,494.

Page 21 — FOI highlights number received

For 2016–17 the number of IC reviews received should be 633, not 632.

Page 28 — Under the list of CPN members

The year that CPN members joined should be 2016–17 not 2017–18.

Appendix G: Index

Appendix H

Footnotes

[1] Australian Government ministers and agencies, and Norfolk Island authorities, are required by s 93 of the FOI Act and reg 8 of the Freedom of Information (Prescribed Authorities, Principal Offices and Annual Report) Regulations 2017 to submit statistical returns to the OAIC every quarter and provide a separate annual report on FOI and IPS costs.

[2] The data reported in this appendix has been rounded to two decimal places. In the main body of the annual report it has been rounded to a whole number for increased readability.

[3] As a result of an Administrative Arrangements Order dated 20 December 2017, the Department of Immigration and Border Protection changed its name to the Department of Home Affairs. This report refers to the Department of Home Affairs. The reported data includes data reported by the (former) Department of Immigration and Border Protection during the first six months of 2017–18.

[4] The Department of Jobs and Small Business was created as a result of an Administrative Arrangements Order dated 20 December 2017. This department incorporates the former Department of Employment with small business policy and programs, and reducing the burden of government regulation into its responsibilities. This appendix refers to the Department of Jobs and Small Business throughout and includes FOI data reported by the (former) Department of Employment during the first six months of 2017–18.

[5] Although an agency or minister can transfer a wrongly directed FOI request under s 16(1) of the FOI Act, this can only be done with the agreement of the receiving agency. If the applicant makes the request directly to the agency, it must be processed.

[6] Total of requests on hand at the beginning of the year and requests received during the year.

[7] Covers access granted in full, part or refused.

[8] The sum of requests withdrawn, transferred and decided.

[9] The release of all documents within the scope of the request, as interpreted by the agency or minister.

[10] A document is granted in part when a part, or parts, of a document have been redacted to remove exempt or conditionally exempt matter.

[11] The Attorney-General’s Department finalised 57.30% of all the requests it received in 2017–18 (it received 185 FOI requests and finalised 106). The Department of Education and Training finalised 54.96% (182 requests received, 100 finalised).

[12] Percentage of the total number of notices advising of an intention to refuse a request for a practical refusal reason.

[13] An agency may extend the period of time to make a decision by agreement with the applicant (s 15AA), or to undertake consultation with a third party (ss 15(6)–(8)). An agency can also apply to the Information Commissioner for more time to process a request when the request is complex or voluminous (s 15AB), or when access has been deemed to be refused (s 15AC or section 51DA) or deemed affirmed on internal review (s 54D). These extension provisions acknowledge that there are circumstances when it is appropriate for an agency to take more than 30 days to process a request. When an agency has obtained an extension of time to deal with an FOI request, and resolves the request within the extended time period, the request is recorded as having been determined within the statutory time period.

[14] The other agencies to receive amendment applications in 2017–18, are the Department of Human Services (14), the Department of Jobs and Small Business (13), the Department of Defence (10), Comcare (5), the Department of Veterans’ Affairs (3), the Administrative Appeals Tribunal (2), the Australian Taxation Office (2), the Australian Federal Police (1), the Australian Financial Security Authority (1), the Civil Aviation Safety Authority (1), the Department of the Environment and Energy (1), the Fair Work Commission (1) and the National Disability Insurance Agency (1).

[15] FOI Guidelines [14.32].

[16] Section 54W of the FOI Act contains a number of grounds under which the Information Commissioner may decide not to undertake an IC review, or not to continue to undertake an IC review.

[17] Includes the then acting Information Commissioner.

[18] This total reflects rounding to two decimal places.

[19] This total reflects rounding to two decimal places.

[20] As salary levels differ between agencies, median salary levels were used. These are given by the Australian Public Service Commission in its APS Remuneration Report 2017. These median levels are as at 31 December 2017.

[21] APS Level 5 base salary median.

[22] SES Band 1 base salary median.

[23] Executive Level 1 base salary median.

[24] APS Level 3 base salary median.

[25] Executive Level 2 base salary median.

[26] APS Level 3 salary median.

[27] IPS contact officers are officers whose usual duties include IPS work. The other rows cover other officers involved in IPS work.