Part 5: Appendices

Appendix A: Agency resource statement and resources for outcomes

* All figures are GST exclusive.

† Appropriation Act (No.1) 2018–2019. Includes prior year departmental appropriation and Public Governance, Performance and Accountability Act 2013 (PGPA Act 2013), s 74 retained revenue receipts.

‡ Appropriation Act (No.2) 2018–2019.

* Departmental appropriation combines ordinary annual services (Appropriation Act No. 1) and PGPA Act 2013, s 74 retained revenue receipts.

Appendix B: Executive remuneration

This appendix contains information about the remuneration of the Office Australian Information Commissioner’s (OAIC) key management personnel and Senior Executive Service.

Key management personnel

The OAIC has determined that our key management personnel (KMP) are the Australian Information Commissioner and the Deputy Commissioner. Ms Angelene Falk held the position of Australian Information Commissioner for the duration of the reporting period. Ms Falk initially acted in the position until her formal appointment on 16 August 2019.

Mr Andrew Solomon and Ms Melanie Drayton were acting in the Deputy Commissioner’s role from the commencement of the reporting period to 6 February 2019. On 14 January 2019 Ms Elizabeth Hampton was appointed to the substantive position.

Details of KMP remuneration are in Note 4.2 of the financial statements. Disaggregated information is shown in Table B.1 and is prepared in accordance with the Public Governance, Performance and Accountability Rule 2014 (PGPA Rule) and Commonwealth Entities Executive Remuneration Reporting Guide for Annual Reports, Resource Management Guide No. 138 (RMG 138).

Senior Executive Service

The OAIC has three substantive Senior Executive Service (SES) positions including the Deputy Commissioner; the Assistant Commissioner, Dispute Resolution; and the Assistant Commissioner, Regulation and Strategy.

Table B.2 is prepared in accordance with the PGPA Rule and RMG 138 and provides the average annual reportable remuneration for substantive SES.

Remuneration policies and practices

In accordance with s 17 of the Australian Information Commissioner Act 2010, the Australian Information Commissioner’s remuneration is set by the Remuneration Tribunal. The Remuneration Tribunal also determine increases to remuneration or allowances.

The OAIC’s SES remuneration is determined by the Australian Information Commissioner under s 24(1) of the Public Service Act 1999. When determining SES remuneration, the Australian Information Commissioner has regard to the Australian Public Service Commission’s Australian Public Service Remuneration Report and comparable agencies.

SES determinations set out the salary on commencement and provide for increments in salary, in line with any percentage up to 5% set by the Remuneration Tribunal for the Australian Information Commissioner.

To be eligible for an increase in salary an SES officer must obtain an annual performance rating of effective or above. The OAIC’s performance management framework, Talking About Performance, enables SES officers performance agreements. The agreement objectives are directly linked to the SES officer’s business line responsibilities of the OAIC’s Corporate Plan.

The Australian Information Commissioner sets and reviews the Deputy Commissioner’s performance agreement. The Deputy Commissioner sets and reviews Assistant Commissioners’ performance agreements.

Remuneration governance arrangements

As a small agency, the Australian Information Commissioner is responsible for setting and monitoring remuneration for the OAIC’s SES officers.

* $4,524 for travel allowance.

† $397 for motor vehicle allowance.

* Represents total number of substantive SES positions and excludes individuals partially assigned to SES responsibilities.

† Excludes KMP remuneration, which is shown in Table B.1.

Appendix C: Memoranda of understanding

Australian Digital Health Agency

Under our Memorandum of Understanding (MOU) with the Australian Digital Health Agency we continued to provide support and assistance on privacy matters relating to both the Healthcare Identifiers Service and 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 misuse of healthcare identifiers or a contravention of the My Health Record system, if required
• receiving data breach notifications and providing 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 materials
• providing policy and legislation advice relating to the privacy aspects of the Health Identifiers Service and My Health Record System
• monitoring and participating in digital health developments.

During this reporting period, the Office of the Australian Information Commissioner received $1,626,023.40 (GST exclusive).

For further information on our activities under this MOU, see the Annual Report of the Australian Information Commissioner’s Activities in Relation to Digital Health 2018–19 (available on our website no later than 28 November 2019).

Australian Human Rights Commission

The Australian Human Rights Commission (AHRC) continued to provide a number of corporate services to our office this year, including financial, administrative, information technology and human resource related tasks. We also sublet premises in Sydney from the AHRC.

For the corporate services we paid $916,956.72 (GST exclusive) and for the premises (including outgoings) we paid $1,083,040.92 (GST exclusive) to the AHRC.

Australian Capital Territory Government

In 2018 we entered into a new MOU with the Australian Capital Territory (ACT) Government to continue to provide privacy services to ACT public sector agencies. These services included:

• responding to privacy complaints and enquiries about ACT public sector agencies in relation to the Information Privacy Act 2014 (ACT) and its Territory Privacy Principles
• providing policy and legislation advice
• providing advice on data breach notifications, where applicable
• carrying out a privacy assessment
• providing access to our Privacy Professional Network meetings.

For these services, we received $177,500 (GST exclusive) from the ACT Government.

For further information on our activities under this MOU, see the Memorandum of Understanding with the Australian Capital Territory for the Provision of Privacy Services 2018–19 Annual Report (available on our website no later than 22 October 2019).

Department of Education and Training

In July 2018 we entered into a new MOU to continue to support the Department of Education and Training (now the Department of Education) with their student identifier initiative, providing expert and timely advice on privacy matters. Our services to the department included:

• developing the content for four editions of the TRANSPARENT privacy newsletter for publication on the Unique Student Identifier website
• responding to any enquiries and complaints relating to the privacy aspects of the Student Identifier initiative
• conducting a webinar on privacy matters for registered training organisations
• giving a presentation on privacy matters at a vocational education conference
• conducting a privacy assessment of the Unique Student Identifier Transcript Service.

For these services, we received $100,000 (GST exclusive).

Department of Home Affairs

In November 2017, the Attorney-General’s Department and the OAIC signed an MOU for the provision of privacy assessments in relation to the National Facial Biometric Matching Capability (NFBMC).

On 20 December 2017, the Department of Home Affairs assumed responsibility for the NFBMC as part of Machinery of Government changes and subsequently assumed responsibility for the roles and responsibilities under the MOU.

In February 2018, the Identity-matching Services Bill 2018 was introduced into Parliament but was not passed, so our privacy assessments have been deferred to later financial years. In May 2019 we signed a variation to the MOU to defer commencing privacy assessments and associated payments for two years.

Appendix D: Privacy statistics

Privacy complaints

* A complaint may cover more than one issue.

* A resolved complaint may involve more than one type of remedy.

† Includes APPs, National Privacy Principles and the Australian Capital Territory’s Territory Privacy Principles.

* Only includes APP complaints.

Privacy assessments and digital health assessments

Appendix E: FOI statistics

This appendix contains information regarding:

• requests for access to documents
• applications for amendment of personal records
• charges
• disclosure logs
• review of freedom of information (FOI) decisions
• complaints about agency FOI actions
• the impact of FOI on agency resources
• the impact of Information Publication Scheme (IPS) on agency resources.

It has been prepared using data collected from Australian Government agencies and ministers subject to the Freedom of Information Act 1982 (FOI Act), and separately from the Administrative Appeals Tribunal (AAT) and the Office of the Australian Information Commissioner’s (OAIC) 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 or 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.

Number of FOI requests received

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

The number of FOI requests made to Australian Government agencies increased by 12.90% in 2018–19. The number of FOI requests received over the past five years has varied considerably from year to year largely driven by significant changes in the number of requests for personal information received each year.

The increase in the overall number of FOI requests in 2018–19, was principally driven by a significant increase in the number of FOI requests for personal information received by the Department of Home Affairs (+24.18%). The Department of Home Affairs receives the most FOI requests of any Australian Government agency, with the bulk of those being personal information requests, so any increase (or decrease) in request numbers to that agency influences overall FOI request numbers across the Australian Government.

In 2018–19, 32,440 FOI requests (or 83.44% of all requests received) were for documents containing personal information. This is a higher proportion than in 2017–18 (81.88%) and 2016–17 (81.94), but a lesser proportion than in 2015–16 (86.55%).

In 2018–19, there were 6,439 FOI requests (or 16.56% of all requests) for ‘other’ information. This is a lower proportion than in 2017–18 (18.12%) and 2016–17 (18.06%), but an increase when compared with 2015–16 (13.45%).

Number of FOI requests received by an agency or minister

The Governor-General authorised three Administrative Arrangements Orders (AAOs) in 2018–19: on 28 August 2018, 4 April 2019 and 29 May 2019. These AAOs changed the functions and administrative responsibilities of some agencies and resulted in changes to the number and composition of FOI requests received by affected agencies during the year.

In 2018–19, the Department of Home Affairs, the Department of Human Services (DHS)[3] and the Department of Veterans’ Affairs (DVA) together continued to receive the majority of FOI requests received by Australian Government agencies (69.13% of the total). Nearly all of these requests (95.19%) are from individuals seeking access to personal information.

The 20 agencies that received the largest number of requests in 2018–19 are shown in Table E.2, with a comparison to the number of requests each of those agencies received in 2017–18.

Although the Department of Home Affairs received 24.18% more personal FOI requests in 2018–19 than in the previous financial year (from 13,557 to 16,828), it experienced a 44.68% increase in ‘other’ FOI requests (from 620 in 2017–18 to 897 in 2018–19). The increased number of FOI requests, for both personal and other information, may reflect the increased number of functions for which the Department of Home Affairs is responsible for due to the AAOs during the year, and an increased interest in the policies and operations of the Department of Home Affairs.

However, trends in FOI request numbers are not uniform across the Australian Government. For example, other agencies in the top five agencies either received fewer FOI requests this financial year (the DVA experienced a 9.75% decrease) or experienced modest increases (4.87% for the AAT and 2.95% for the Australian Taxation Office (ATO)). The DHS received a similar number of FOI requests to 2017–18 (6,210 compared with 6,238 in 2017–18).

Some agencies in the top 20 agencies experienced increases in FOI request numbers far exceeding the overall increase of 12.90%. For example, the Australian Postal Corporation (170.69%), the National Disability Insurance Agency (155.66%) and our own agency, the OAIC (a 171.11% increase).

There was also variance across government in the number and proportion of personal and other information FOI requests in 2018–19.

While the DVA experienced a decline in overall request numbers in 2018–19, there was a 129% increase in other information FOI requests (from 62 in 2017–18 to 142 this year) and for the ATO, it experienced a 28.32% decline in other information FOI requests in 2018–19, in the context of a 2.95% overall increase in request numbers.

Two agencies in last year’s top 20 agencies experienced decreases in the numbers of FOI requests received in 2018–19 and no longer appear in the top 20 agencies: the Department of Jobs and Small Business[4] (a 32.42% decrease) and the Commonwealth Ombudsman (a 32.63% reduction).

* Denotes an agency not in the top 20 agencies in 2017–18.

† Denotes an agency whose name or functions changed as a result of AAOs issued on 28 August 2018, 4 April 2019 and 29 May 2019. For example, the Department of Education was formerly the Department of Education and Training, and see footnote 3 about DHS’s change of name.

‡ Shows the total for the top 20 agencies in 2017–18 (that is, includes figures for three agencies not in the top 20 agency list in 2018–19).

FOI requests finalised

Agencies and ministers commenced 2018–19 with significantly fewer FOI requests on hand requiring a decision than the previous financial year (47.32% fewer than at the beginning of 2017–18) (Table E.3).

There was a large increase in the number of FOI requests withdrawn by applicants (39.26% more than in 2018–19), a large increase in FOI requests received during this reporting period (12.90%) and a slight reduction in the number of requests decided (4.83% less than in 2017–18). At the end of the financial year, there were 30.31% more requests on hand than at the beginning of the financial year (4,317).

Reasons for the higher number of requests being withdrawn during this reporting period may include:

• increased referral to, or use of, administrative access to provide access to documents outside the FOI Act
• documents already being available on agency disclosure logs or published on agency IPS entries or in annual reports
• applicants accepting verbal assurances that no documents exist within the scope of their request
• requests sent to the wrong agency in the first instance which are then withdrawn and sent to the correct agency.[5]

Despite three AAOs during 2018–19, the number of requests transferred from one agency or minister to another in 2018–19 remained stable, with 639 transferred in 2018–19, compared with 641 in 2017–18.

* Total of FOI requests on hand at the beginning of this reporting period and requests received during this reporting period.

† Covers access granted in full, part or refused.

‡ The sum of requests withdrawn, transferred and decided.

The percentage of requests granted in full increased in 2018–19, from 49.81% of all requests in 2017–18, to 51.83% in 2018–19 (Table E.4). Despite the increase during this reporting period, the figure is still lower that the 2016–17 figure of 55.47%.

The percentage of FOI requests granted in part was 34.97%; a rate similar to 2017–18 when 34% of all requests were granted in part (Table E.4). The number of FOI requests refused in 2018–19 (which includes requests refused because the documents sought do not exist or cannot be found or a practical refusal reason exists, as well as when exemptions have been applied) decreased from 16.19% in 2017–18 to 13.20% in 2018–19. Note that the number of requests refused in full in 2016–17 was only 9.95%.

Table E.5 lists the top 20 agencies by the number of FOI decisions made.

There are differences in the outcome of FOI requests between those agencies processing the largest number of requests in 2018–19. Eight of the top 20 agencies refused access to documents at levels higher than the average across all Australian Government agencies (37.3%). These agencies process proportionally higher numbers of other information FOI requests. Agencies processing higher proportions of FOI requests for personal information have higher rates of FOI requests granted in full than the Australian Government average (25.93%): for example, the DVA, the Department of Home Affairs, the DHS, the AAT and the Immigration Assessment Authority.

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

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

Use of exemptions

Table E.6 shows how Australian Government agencies and ministers claimed exemptions under the FOI Act when processing FOI requests in 2018–19. More than one exemption may be applied in processing an FOI request.

Exemptions were not claimed or were not relevant in relation to 6,718 FOI requests decided in 2018–19 (22.29% of all FOI requests decided).

The personal privacy exemption (s 47F) remains the most claimed exemption. It was applied in 38.28% of all FOI requests in which exemptions were claimed in 2018–19. However, this is a decline in the use of s 47F from 42.68% in 2017–18 and 47.90% in 2016–17.

The next most claimed exemptions were s 47E (certain operations of agencies — 21.26%, up from 19.75% in 2017–18), s 37 (documents affecting enforcement of law and protection of public safety — 9.88%, a slight increase from 2017–18 when it accounted for 9.17% of all exemptions applied), s 38 (documents to which secrecy provisions apply — 6.77%, slightly up on 2016–17’s 6.64%) and s 47C (deliberative processes — 6.51%, an increase on 2017–18 when it comprised 5.20% of all exemptions applied).

Overall there was very little change in the application of the remaining exemptions. The only exemption that showed any real difference in 2018–19, was s 47 (documents disclosing trade secrets or commercially valuable information) which comprised 1.34% of all exemptions applied, up from 0.93% in 2017–18.

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 E.7 provides information about how Australian Government agencies and ministers engaged in request consultation processes under s 24AB of the FOI Act in 2018–19 and the outcome of those processes.

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

Agencies sent 47.25% fewer notices of an intention to refuse an FOI request for a practical refusal reason in 2018–19 than in 2017–18. However, 2017–18 was a year in which an unusually large number of notices were issued (a 163.28% increase over the previous financial year) due to the Northern Australia Infrastructure Facility refusing 1,332 FOI requests in 2017–18 for a practical refusal reason. This circumstance largely accounts for the number of notices issued in 2018–19 returning to the pre 2017–18 level.

In 2018–19, 76.81% of the FOI requests subject to a notice of intention to refuse a request were subsequently refused or withdrawn: the proportion was 84.25% in 2017–18 and 66% in 2016–17.

The lower the proportion of FOI requests subsequently refused or withdrawn after a practical refusal notice is issued, the better agencies have been in assisting applicants to revise the scope of their requests so they can be processed. Therefore, taking into account 2017–18 was an atypical year for practical refusal, there has been a significant deterioration in this statistic with less requests subsequently processed in 2018–19 than in 2016–17.

Four agencies issued 66.25% of all notices of an intention to refuse a request for a practical refusal reason in 2018–19: the Department of Home Affairs (792 notices), the DHS (489), the Australian Securities and Investments Commission (ASIC) (104), and the ATO (89).

The Department of Home Affairs issued 34.24% more notices of an intention to refuse a request in 2018–19, than in 2017–18 (when it issued 590) and the DHS issued 91.77% more (489 in 2018–19; 255 in 2017–18). However, the DHS (30.27%), ASIC (41.37%) and the ATO (40.45%) were all more likely to subsequently process an FOI request after issuing a notice of intention to refuse than the Department of Home Affairs (who subsequently processed only 2.27% of requests after a notice was issued).

In June 2019, the Information Commissioner issued a series of decisions under s 55K reviewing practical refusal decisions of agencies. These decisions provide additional guidance for agencies and ministers, in particular their obligation to assist applicants revise the scope of their requests so they can be processed. The OAIC hopes to see a decrease in the proportion of requests refused or withdrawn after a notice of intention to refuse a request is sent in 2019–20.[6]

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 timeframe to be extended in certain circumstances.[7]

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 have an obligation to continue to process a request that has been deemed to be refused.

In 2018–19, 82.58% of all FOI requests determined were processed within the applicable statutory time period: 83.14% of all personal information requests and 79.83% of non-personal requests. This represents a slight decrease in timeliness of decision-making from 2017–18 (when 84.86% were decided within time).

The Department of Home Affairs compliance with statutory timeframes remained relatively stable at 74.16% in 2018–19 (it was 74.88% in 2017–18); however, this is a significant improvement over 2016–17, when only 25.22% of FOI requests to the Department of Home Affairs were finalised within the statutory time period.

A number of agencies that process substantial numbers of FOI requests decided them all within the statutory time period in 2018–19. These agencies include the Department of Health (224 requests decided in 2018–19), the Department of the Environment and Energy (163), the OAIC (133), the Department of Employment, Skills, Small and Family Business (DESSFB) (111), the Department of Education (94), the Australian Skills Quality Authority (94), IP Australia (87), the Department of Agriculture (72) and the Department of Finance (64).

There was also an overall reduction in the number of requests decided more than 90 days over the applicable statutory time period (Table E.9) when compared with 2017–18 (2.46% in 2018–19; 6.63% in 2017–18).

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 2018–19, 10 agencies received 673 amendment applications (no applications were received by ministers). This is a 31.96% increase in applications from 2017–18 when 510 applications were received. However, in 2017–18 there was a 53.64% decrease in applications compared with the previous year (1,100 amendment applications were made in 2016–17).

The increase in amendment applications is largely due to an increase in applications received by the Department of Home Affairs (35.60% more in 2018–19 than in 2017–18). Increases in amendment applications were also experienced by the Department of Defence (a 50% increase, from 10 to 15 applications) and the DHS (a 21.43% increase, from 14 to 17 applications).[8]

Table E.10 compares the decision-making for amendment applications with 2017–18. In 2018–19, a decision was made to amend or annotate a person’s personal record in 75.86% of all decided applications, an increase in the proportion granted in 2017–18, when 72.28% of all applications were granted. Because the Department of Home Affairs accounts for 91.38% of all amendment applications received, overall trends in amendment decision-making are largely determined by decisions made by the Department of Home Affairs.

* Percentage increase or decrease over 2017–18.

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 day the request is received, or a longer period as extended under the FOI Act.

In 2018–19, 89.51% of all amendment applications were decided within the applicable statutory time period compared to 85.82% in 2017–18.

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 E.11 shows the amounts collected by the 20 agencies that collected the most in charges under the FOI Act in 2018–19. These top 20 agencies are responsible for 86.55% of all charges collected by Australian Government agencies and ministers.

In 2018–19, agencies notified a total of $357,039 in charges with respect to 822 FOI requests, but collected only $122,774 (34.39% 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 less in charges in 2018–19 than in 2017–18, but collected more. As noted above, in 2018–19, agencies notified a total of $357,039 in charges, 6.91% less than in 2017–18, when $383,531 was notified, and collected $122,774, a 5.97% increase over 2017–18 when $115,863 was collected.

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 104 agencies and ministers provided information about their disclosure log activity in 2018–19. Collectively, they reported 1,200 new entries on disclosure logs during 2018–19; including documents available for download directly from the agency or minister’s website in relation to 713 requests, documents available from another website in relation to 52 requests, and 435 entries in which the documents are available by another means (usually upon request).

The total number of new entries published on disclosure logs in 2018–19 is 8.70% higher than 2017–18, when 1,104 entries were added.

However, despite their being an increase in the proportion of documents which members of the public can access directly from agency websites (in 2018–19 it was 59.42% compared to 56.52% in 2017–18) the 2018-19 proportion is lower than the 66.87% in 2015–16. 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.[9] In 2019–20, the OAIC intends to revise 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 and to provide guidance to assist agencies in achieving this objective.

In 2018–19, agencies and ministers reported a total of 268, 861 unique visits to disclosure logs and 215,209 page views, which represents a 607.64% increase in unique visits since 2017–18 and a 289.47% increase in total page views reported in 2017–18. It is not clear whether this increase was the result of actual increases or better recording and reporting of website visits occurred in 2018–19 than in previous years.

Review of FOI decisions

Under the FOI Act, an applicant who is dissatisfied with the decision of an agency or minister on their initial FOI request has a number of 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 s 55K are reviewable by the AAT. AAT decisions may be appealed on a question of law to the Federal Court. In addition, an applicant can complain at any time to the Information Commissioner about an agency’s actions under the FOI Act.

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 obligation to do so, the Information Commissioner recommends and encourages FOI applicants to apply for an internal review before applying for an IC review.

In 2018–19, 893 applications were made for an internal review of FOI decisions: 12.05% more than in 2017–18 (when 797 internal review applications were made).

Of the 893 applications for an internal review, 543 (60.81%) were for review of decisions made in response to requests for personal information and 350 (39.19%) were for review of decisions on other information requests.

Agencies finalised 829 decisions on internal review in 2018–19: 26.60% more than in 2017–18 (733). Of these, 429 (51.75%) affirmed the original decision, 91 (10.98%) set aside the original decision and granted access in full, 232 (27.99%) granted access in part, seven (0.84%) granted access in another form, 14 (1.69%) resulted in lesser access and applicants withdrew 39 applications (4.71%) without concession by the agency. Agencies reduced the charges levied as a result of internal review in 17 cases (2.05%).

There were eight applications for internal review of decisions on amendment applications, 20% fewer than in 2017–18 (when 10 applications were made). Agencies made 10 internal review decisions on amendment applications: in eight (80%) the original decision was affirmed and in two (20%) the original decision was set aside. In 2017–18, 77.78% of original decisions were affirmed and 22.22% set aside.

IC review

Table E.12 provides a breakdown by agency and minister of IC review applications received in 2018–19, where the agency or minister was the subject of more than one IC review. In total, there were 928 applications for IC review (up 15.86% from 801 in 2017–18).

In general, the agencies that received the most FOI requests have the most IC review applications lodged against their decisions. In 2018–19, of the 20 agencies experiencing the most IC reviews, 15 also appear in the list of top 20 agencies in terms of the number of FOI requests received.

However, some agencies that did not receive large numbers of FOI requests were the subject of a comparatively large number of IC review applications given their FOI caseload. In 2018–19, the agencies with a large number of IC reviews lodged, expressed as a proportion of the total number of FOI requests received included the Australian Broadcasting Corporation (15.71%), ASIC (11.49%) and the DESSFB (11.49%).

There was an 8.03% increase in the number of IC reviews finalised by the OAIC in 2018–19 (659), compared with 2017–187 (when 610 were finalised).

In 2018–19, 599 IC reviews were finalised without a formal decision being made under s 55K of the FOI Act (90.90% of all IC reviews finalised during this reporting period). This is a higher percentage than in 2017–18 (79.84%) and 2016–17 (79.81%).

The number of IC review applications declined under s 54W[10] of the FOI Act increased as a percentage of the total IC reviews finalised in 2018-19. In 2018–19, 196 IC reviews were declined under s 54W (29.74%) (2017–18, 26.89%; 2016–17, 27.38%).

Of the 196 IC review applications decisions taken not to review or not to continue to review the application under s 54W of the FOI Act: 64.29% were declined under s 54W(a)(i) (either frivolous, vexatious, misconceived, lacking in substance, or not made in good faith), 17.35% were declined under s 54W(a)(ii) (failure to cooperate), 2.55% under s 54W(a)(iii) (lost contact) and 15.82% under s 54W(b) (allow to go direct to AAT).

In 2018–19, the Information Commissioner made 60 decisions under s 55K of the FOI Act. Of the 60 decisions, 19 affirmed the decision under review (31.67%), 37 set aside the reviewable decision (61.67%) and four decisions were varied (6.67%). In 2017–18, the Information Commissioner affirmed 55.28% of decisions, set aside 36.59% and varied 8.13%.

Of the 19 decisions affirmed by the Information Commissioner, two decisions (10.5%) were revised by the agency or minister under s 55G of the FOI Act during the IC review, giving greater access to the documents sought. Of the 37 decisions set aside and substituted by the Information Commissioner, in 10 (27%), the agency withdrew 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 decreased from 13.28% in 2017–18, to 11.10% in 2018–19 (Table E.13).

* This total reflects rounding to two decimal places.

AAT review

An application can be made to the AAT for review of the following FOI decisions:

• a decision of the Information Commissioner under s 55K
• 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 directly.

In 2018–19, 21 applications for review of FOI decisions were made to the AAT. This is a 30% decrease on the 30 applications made in 2017–18.

Table E.14 provides a breakdown, by agency, of applications to the AAT in FOI matters in 2018–19. This data has been provided by the AAT.

In 2018–19, two agencies sought review in the AAT of decisions made by the Information Commissioner under s 55K of the FOI Act: the Australian Bureau of Statistics and the Department of Prime Minister and Cabinet.

Twenty-one applications remain outstanding with the AAT at the end of 2018–19.

Table E.15 shows the outcome of the 20 FOI reviews finalised by the AAT in 2018–19. AAT provided this data.

* This total reflects rounding to two decimal places.

Of the 20 FOI reviews finalised by the AAT, seven (35.00%) resulted in published decisions in 2018–19.

The AAT affirmed the agency’s decision in six (30.00%) of the 20 AAT reviews, compared with five (15.15%) in 2017–18.

Of the 20 FOI reviews finalised in 2018–19, three involved applications made by Australian Government agencies following decisions made by the Information Commissioner under s 55K of the FOI Act. Of these three reviews, one application was affirmed (by decision), one was varied with consent, and the other set aside and substituted by consent.

Federal Court

In January 2019, the Federal Circuit Court of Australia (Jarrett J) set aside a decision by a delegate of the Information Commissioner not to continue to undertake an IC review between the applicants and the second respondent, the Australian Human Rights Commission, and remitted the application to the OAIC for further consideration and determination according to law (see Powell & Anor v Australian Information Commissioner & Anor [2019] FCCA 39 (9 January 2019)).

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 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 IPS. To facilitate comparison with 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 2018–19 was $59.85 million, a 14.68% increase over the previous financial year’s total of $52.19 million.

The reason for the increase in the overall cost of FOI activity is a 12.96% increase in the total staff hours devoted to FOI in 2018–19 (when compared with 2017–18). Total staff hours in 2017–18, were 744,350; however, that rose to 840,803 in 2018–19. As a result, the average cost of each FOI request determined during this reporting period rose to $1,985.30 (from $1,648 in 2017–18).

Table E.16 sets out the average cost per FOI request determined (granted in full, in part or refused) compared to the last two financial years. The average cost per request determined in 2018–19 was $1,985 (up 20.45% from 2017–18).

Staff costs

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

Agencies provide 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 (Table E.17).

A summary of staff costs is provided in Table E.18, based on information provided by agencies and ministers and is calculated using the following median base annual salaries from Australian Public Service Commission public information:[11]

• FOI contact officer (officers whose duties included FOI work) $78,092[12]
• other officers involved in processing requests:
  • Senior Executive Service (SES) officers (or equivalent) $196,609[13]
  • APS Level 6 and Executive Levels (EL) 1–2 $113,866[14]
  • Australian Public Service (APS) Levels 1–5 $63,952[15]
• minister’s office:
  • minister and advisers $140,680[16]
  • minister’s support staff $63,952.[17]

Total estimated staff costs in 2018–19 were $57.12 million, 15.10% more than in 2017–18. In 2017–18, total estimated staff costs rose by 17.18% over the previous financial year.

Non-labour costs

Non-labour costs directly attributable to FOI are summarised in Table E.19, including the percentage change from the previous year. The total non-labour costs in 2018–19 were $2.73 million, a 6.35% increase over the previous financial year ($2.56 million).

The largest increases in non-labour costs in 2018–19 were in relation to general legal advice costs (22.88% higher than in 2017–18) and training costs (19.07% higher). The higher general legal advice costs are primarily the result of Indigenous Business Australia and the DVA reporting higher than average legal expenses. Indigenous Business Australian explains that their increased general legal expenditure in 2018–19 relates to an application to the Information Commissioner to have a person declared vexatious. The DVA general legal advice expenditure increased by 644.71% in 2018–19 (from $18,419 in 2017–18 to $137,168 in 2018–19).

There was also a 19.07% increase in training costs associated with FOI in 2018–19. This reflects training provided to new FOI staff and ongoing training for existing staff.

However, as can be seen from Table E.19, there was a substantial (-47.50%) decrease in general administrative costs (these include printing and postage). Undoubtedly, this reflects a general decline in the number of people requiring documents to be printed and sent to them in the post and increasing efficiencies in the use of digital technology.

Average cost per FOI request

The overall average number of staff days to process an FOI request in 2018–19 was 2.88 days; the same as in 2017–18 (2.87 days). As in previous years, the average staff days per FOI request differed significantly across agencies, from 0.02 days (the Australian Sports Anti-Doping Authority) to 37.60 days (the Bureau of Meteorology).

The average cost per request received also differed significantly across agencies from $10.77 to $71,441.05. The overall average cost per request received was $1,539.26, a 1.58% increase on the previous year’s average of $1,515.37.

As a general rule, the agencies with the highest average cost per request are small agencies which do not receive many FOI requests (Table E.20). As a result, they do not have the opportunity to develop the processing efficiencies that agencies with higher volumes of FOI requests do.

However, the Department of Defence, which received 441 FOI requests in 2018–19, has a high average cost per request. This is because its average staff days per request are high (20.98 per request) and its overall costs are higher than other agencies because of its general administrative, legal and training costs in 2018–19 ($179,227).

Impact of the IPS on agency resources

Agencies are required to provide information about the costs of meeting their obligations under the IPS.

The total reported cost attributable to compliance with the IPS in 2018–19 was $1,254,293.47, 30.03% more than in 2017–18 ($964,637). This increase may be largely attributable to IPS reviews conducted by agencies as a result of the OAIC conducting a survey of agencies’ IPS compliance between May and July 2018. The OAIC published its report on IPS compliance in June 2019 and intends updating guidance for agencies to assist compliance and promote proactive disclosure thereby reducing the number of FOI requests to ease the processing burden on agencies.

Staff costs

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

Table E.22 shows the staff costs relating to the IPS.

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

Non-labour IPS costs

Reported IPS non-labour costs for all agencies totalled $5,199 in 2018–19, a 49.65% decrease when compared with 2017–18.

Only three agencies (of the more than 200 agencies subject to the requirement to maintain an IPS entry) reported any expenditure on IPS during 2018–19. The Department of Foreign Affairs and Trade was the only agency to report expenditure associated with IPS training ($3,774).

Appendix F: Acronyms and abbreviations

Appendix G: Correction of material errors

Below are corrections of errors in the Office of the Australian Information Commissioner Annual Report 2017–18.

Page 98 — Workplace relations

The sentence: ‘In 2017–18, seven Executive members and other staff received performance pay or were under individual flexibility arrangements, Australian workplace agreements or common law contracts’; should read as follows: ‘In 2017–18, seven Executive members and other staff were under individual flexibility arrangements, Australian workplace agreements or common law contracts.’

Page 145 — Australian Digital Health Agency

The sentence: ‘For the 2017–18 financial year, the value of the MOU was $2,076,649.94 (GST exclusive)’; should read as follows: ‘For the 2017–18 financial year, the OAIC received $1,688,343.88 (GST exclusive).’

Appendix H: List of requirements

Appendix I: Index

Footnotes

[1] Australian Government ministers and agencies, and Norfolk Island authorities, are required by s 93 of the FOI Act and r 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.

[3] Although the AAO of 29 May 2019 changed the name of DHS to Services Australia, DHS has not yet implemented this change and has been referred to as the DHS throughout this report.

[4] As a result of the AAO issued on 29 May 2019, the Department of Jobs and Small Business is now called the Department of Employment, Skills, Small and Family Business.

[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] These decisions will be reflected in the FOI Guidelines.

[7] 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 have been refused (ss 15AC and 51DA) or deemed to have been affirmed on internal review (s 54D). These extension provisions acknowledge 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 finalises the request within the extended time, the request is recorded as having been determined within the statutory time period.

[8] The other agencies to receive amendment application in 2018–19 were the Australian Federal Police, the Australian National University, the Australian Nuclear Science and Technology Organisation, Comcare, the Commonwealth Ombudsman, the DESSFB and the DVA.

[9] FOI Guidelines [14.32].

[10] 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.

[11] Because salary levels differ between agencies, median salary levels have been used. These were published by the Australian Public Service Commission in its APS Remuneration Report 2018. These median levels are as at 31 December 2018.

[12] APS Level 5 base salary median.

[13] SES Band 1 base salary median.

[14] Executive Level 1 base salary median.

[15] APS Level 3 base salary median.

[16] Executive Level 2 base salary median.

[17] APS Level 3 base salary median.