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FOI Guidelines: Part 15 — Reportingv1

Archived Document — This document is no longer in use. Read the current FOI guidelines.

Formerly Part 14 — Reporting

14.1 This part deals with three topics:

  • the transitional arrangements for agency publication under Part II of the FOI Act
  • the obligation of agencies and ministers to provide information to the Information Commissioner for inclusion in the Commissioner’s annual reports
  • the transitional arrangements for agency statistical returns for the 2010–2011 FOI annual report.

Publication under Part II of the Act – transitional arrangements

14.2 A new Information Publication Scheme (IPS) commences on 1 May 2011. The IPS applies only to agencies and not to ministers. The requirements of the IPS are discussed in an OAIC discussion paper, Information Publication Scheme (December 2010), published on GovDex. Further guidance on the IPS will later be published as Part 13 of these guidelines.

14.3 Until 1 May 2011, agencies and ministers are required to comply with the existing publication requirements in ss 8 and 9 of the FOI Act. The pre-2010 reform guidelines for preparing ss 8 and 9 statements are available at www.pmc.gov.au.

Section 8 publication requirements

14.4 Until 1 May 2011, s 8(1) of the FOI Act requires each minister responsible for an agency to publish a statement setting out details of the organisation, functions and powers of the agency, public consultation arrangements, categories of documents held by the agency, and arrangements for public access to agency documents in possession of the agency. Section 8(1)(b) requires the minister to publish an annual update of the agency statement. Section 8(3) requires both the first statement and the annual updates to be published in the agency’s annual report. The practice adopted by most agencies has been to repeat the entire statement as updated in the agency annual report.

14.5 The agency annual reports for 2010–2011 will be published after 1 May 2011, when the IPS has commenced and replaced the existing publication requirements. Under the IPS, agencies will be required to publish to a website information similar to that covered by s 8.

14.6 There is nevertheless an obligation on ministers and agencies to comply with s 8 in their 2010–2011 annual report, even though this obligation will for practical purposes have been overtaken by the IPS. It will be adequate compliance with s 8 if agencies publish an update on the s 8 statement published in their 2009–2010 annual report, with an explanation that the information can now be found on the agency website under the IPS. On the other hand, agencies may choose instead to publish the s 8 statement in full, as in previous annual reports.

14.7 The annual report guidelines published by the Department of the Prime Minister and Cabinet, Requirements for Annual Reports for Departments, Executive Agencies and FMA Act Bodies, will be amended to require a sentence in the s 8 statement for 2010–11 foreshadowing that from 1 May 2011 agencies subject to the FOI Act will publish similar information in accordance with the IPS. The annual report guidelines are available at www.pmc.gov.au.

Section 9 publication requirements

14.8 Until 1 May 2011, s 9(2)(b) of the FOI Act requires the principal officer of each agency to make available at an ‘Information Access Office’ a statement listing documents used by the agency in making decisions that affect the rights and interests of members of the public. The documents are to be available for inspection and purchase (s 9(2)(a)). The statement is to be updated at least annually, and if practicable every three months (s 9(2)(c)). The offices of the National Archives in each capital city have been designated as Information Access Offices under s 28 of the FOI Act. Some agencies also publish their s 9 statement on their web or in their annual report.

14.9 The 2010 amendments to the FOI Act abolish information access offices, and replace s 9 with the IPS. After 1 May 2011, agencies will be required under the IPS to publish on their websites information similar to that covered by s 9.

14.10 Since information access offices will no longer exist after 1 May 2011, and the IPS will substitute for the existing s 9, agencies may not be required to take any additional step in 2011 to comply with existing s 9. That is subject to two qualifications. First, if an agency publishes an update of its s 9 statement prior to 1 May 2011, the update must be provided to the National Archives for publication on their website. Secondly, s 10 of the FOI Act provides that an agency cannot apply a rule, practice or guideline in a document to the prejudice of a member of the public if the document should have been but was not made available for inspection and purchase. An agency should therefore make available for inspection or purchase any document it has created prior to 1 May 2011 to which s 9 applies. It would be prudent to notify that fact in a s 9 statement published on the National Archives website.

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OAIC annual report and FOI statistics

14.11 Section 30 of the AIC Act requires the Information Commissioner to prepare an annual report on the operations of the OAIC, including a report on FOI matters and privacy matters. This integrated annual report replaces two reports – on the operation of the FOI Act, prepared by the Department of the Prime Minister and Cabinet, and on the Privacy Act, prepared by the former Office of the Privacy Commissioner (OPC).

Content of annual report

14.12 The Information Commissioner’s annual report is to include information on the review, complaint, monitoring and advice functions of the OAIC in relation to FOI (s 31 of the AIC Act). Specifically, the report is to include information about guidelines issued by the Information Commissioner, applications for IC review, complaints received by the OAIC, and assistance provided to agencies to enable them to comply with the FOI Act (s 31(1)(a), (f), (h), and (i) of the AIC Act).

14.13 The annual report is also to include information about FOI administration in agencies as listed in paragraph 14.16 below (s 31(1)(b), (c), (d) and (e) of the AIC Act). As discussed below at paragraph 14.15, the Information Commissioner relies on agencies to provide this information to the Information Commissioner as required by s 93 of the FOI Act. The Commissioner’s annual report is also to include information on the number of applications each year for AAT review of FOI decisions (s 31(1)(g) of the AIC Act).

14.14 The annual report also includes information on the operation of the Privacy Act, covering the handling of complaints about breaches of the Act, investigations of agencies or organisations to ensure compliance with the Act, and advice and other assistance provided to government, agencies and organisations to promote good privacy practice. Unless the Information Commissioner requests otherwise, this part of the report will continue to be prepared with little input required from agencies and there is no obligation to provide information corresponding to s 93 of the FOI Act. The integration of the former OPC’s annual report into the OAIC’s annual report does not affect agencies’ obligations to complete an entry for the Personal Information Digest each year under the Privacy Act. This requirement continues unchanged. Further guidance on completing a Personal Information Digest entry may be found at www.oaic.gov.au.

Agencies’ and ministers’ obligations

14.15 Section 93 of the FOI Act requires agencies and ministers to provide information and statistics to the Information Commissioner to enable the Commissioner to prepare the FOI aspects of the annual report.

14.16 Each agency and minister must provide the following information for the Information Commissioner’s annual report:

  • the number of FOI requests made under s 15 of the FOI Act (s 31(1)(b) of the AIC Act)
  • the number of decisions granting, partially granting or refusing access (s 31(2) of the AIC Act)
  • the number and outcome of requests to amend personal records under s 48 of the FOI Act (s 31(1)(c) of the AIC Act)
  • charges collected for processing FOI requests (s 31(1)(d) of the AIC Act)
  • the number and outcome of applications for internal review under s 54 of the FOI Act (s 31(1)(e) of the AIC Act).

14.17 An agency or minister must also comply with any additional requirements in the regulations regarding the provision of information or the maintenance of records for the purposes of providing the information and statistics to the Information Commissioner (s 93(3) of the FOI Act). At present no additional requirements are prescribed by regulation. However, it has been the practice of the Department of Prime Minister and Cabinet to request additional information from agencies. The OAIC will require the same additional information from agencies.

14.18 Agencies and ministers must provide statistical reports on a quarterly and annual basis. Information is entered directly into a secure database through a password-protected web portal. The OAIC will provide agencies with detailed information on how to provide FOI statistics and what is required.

14.19 Amendments to the Freedom of Information (Miscellaneous Provisions) Regulations 1982,which commenced on 1 November 2010, cover the transitional arrangements in relation to the Information Commissioner taking over responsibility from the Department of Prime Minister and Cabinet for receiving these statistics from agencies and ministers, and reporting on them in the Information Commissioner’s annual report.From 1 January 2011 agencies and ministers’ quarterly reports are required by regulation 5 to be submitted within 21days of the end of the quarter, and the annual report by 31 July each year.

14.20 The Department of Prime Minister and Cabinet will prepare a report for the period from 1 July 2010 to 31 October 2010. The information from that report will be incorporated in the OAIC’s annual report for 2010–2011.

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