Last updated: 15 March 2024

See outcomes and recommendations from FOI complaints investigations current as of 15 March 2024

Under Part VIIB of the FOI Act, the Information Commissioner can investigate an action taken by an agency in the performance of its functions or the exercise of powers under the FOI Act. This involves investigating complaints (s 69(1)), as well as conducting investigations at the Commissioner’s own initiative (Commissioner initiated investigations (CIIs)) (s 69(2)).

On completing an investigation, the Information Commissioner must provide a ‘notice on completion’ to the agency and to the complainant (if there is one) (s 86). The Information Commissioner’s notice on completion must include the investigation results, the investigation recommendations (if any), and the reasons for those results and any recommendations (s 86(2)). A notice on completion must not include exempt matter or information about the existence or non-existence of a document that would be exempt under ss 33, 37(1) or 45A (ss 89C and 25(1)).

If recommendations have been made (s 88), and the Information Commissioner is not satisfied that the agency has taken adequate and appropriate action to implement a formal recommendation, the Information Commissioner may issue a written ‘implementation notice’ requiring the agency to provide within a specified time particulars of any action the agency will take to implement the Information Commissioner’s recommendations (s 89).

The Information Commissioner may subsequently report to the minister responsible for the agency and the minister responsible for the FOI Act if the Information Commissioner is not satisfied that the agency has taken adequate and appropriate action to implement the recommendations or has not responded to the implementation notice within the specified time (s 89A). The minister responsible for the FOI Act must table the report before each House of the Parliament (s 89A(5)).

Respondent agency

Issue(s)

Type of FOI request

Date of Notice on completion

Outcome

Recommendations or suggestions

Respondent’s response to recommendations

Further action to be taken

Department of Veterans’ Affairs

Whether the Department was incorrectly managing disclosure log access requests

Non-personal

13 March 2024

On balance, the complaint is substantiated. The Department has since taken reasonable steps to address the complainant’s concerns. There are no current delays with the Department providing access to documents from its disclosure log.

Two suggestions made:

  1. The Department is to provide quarterly updates to the   OAIC – on 13 September 2023 and 13 March 2025 – about its timeliness in   providing documents from its disclosure log. In providing this update, the   Department should include details of any delays in providing access to   documents from its disclosure log, whether the Department is corresponding   with FOI applicant in circumstances of delays, and the steps it is taking to   ensure that delays do not continue to occur.
  2. The Department is to provide quarterly   updates to the OAIC – 13 September 2023 and 13 March 2025 – regarding its   progress in moving its disclosure log towards direct download.

Not applicable.

Not applicable.

Department of Industry, Science and Resources

Whether the Department ought to have consulted with the complainant prior to publishing documents on its disclosure log and third party websites

Personal

6 March 2024

On the balance, the complaint is substantiated. The Department has since taken reasonable steps to address the complainant’s concerns. The Department’s approach in this matter does not reflect any systemic procedural concerns in how the Department processes requests.

One suggestion made:

  1. The Department   update its policies to highlight the need to carefully consider the   requirement to consult having regard to the unique circumstances of each case   prior to publishing documents on its disclosure log and/or third-party   websites.

Not applicable.

Not applicable.

Australian Federal Police

Whether the AFP adequately communicated with the complainant while processing the request

Whether there were delays in processing the request

Non-personal

5 March 2024

The complaint is substantiated.

There were significant delays in processing the complainant’s request of 14 June 2021 made under s 15 of the FOI Act.

The AFP was not sufficiently responsive to complainant’s emails to the AFP following the issue of a notice of intention to refuse.

The AFP did not take reasonable steps during the practical refusal process to assist the complainant to revise the request so that the practical refusal reason no longer existed (see s 24AB of the FOI Act).

Three recommendations made:

  1. The AFP’s FOI branch is to undergo training which   highlights the requirement to comply with timeframes under the FOI Act, the   appropriate circumstances to seek an extension of time, and the requirements   to actively engage with FOI applicant during the request consultation process   to assist them revise the scope of their request.
  2. The AFP is to conduct an assessment of all FOI requests   received between 5 June 2023 and 5 December 2023 in which a practical refusal   notice is sent to an applicant pursuant to s 24AB(2) to ensure that the   statutory timeframes are being complied with and that the training has been   effective.
  3. The AFP report the findings of the assessment to the   OAIC highlighting any ongoing inefficiencies and the steps the AFP will   endeavour to take to ensure that those inefficiencies are properly addressed.
  

National Disability Insurance Agency

Whether the Agency complied with statutory timeframes (s 15(5)(b))

Whether the Agency failed to provide timely responses to correspondence

Personal

4 March 2024

The complaint is substantiated.

The Agency failed to comply with s15 of the FOI Act and failed to implement systems and processes sufficient to uphold its duties under the FOI Act.

Three recommendations made:

  1. The Agency must provide training to staff regarding the   interaction between FOI and PIA requests, highlighting the importance of   ensuring that the scope of the request is properly understood as well as   engaging in flexible communication with applicants in a timely manner.
  2. The Agency undertake an assessment of all FOI requests   which involve a request for ‘personal’ documents received between 5 May 2024   and 4 November 2024 to ensure that statutory timeframes are being complied   with and that the training has been effective.
  3. The Agency report the findings of the assessment to the   OAIC, highlighting its findings as well as what steps the Agency will   endeavour to take to ensure that any concerns arising from the assessment are   promptly addressed.

Two suggestions made:

  1. As part of the above assessment, the Agency should also   assess all PIA requests received between 5 May 2024 and 4 November 2024 to   ensure that statutory timeframes are being complied with in accordance with   the FOI Guidelines at [3.5].
  2. The Agency should look to improve its systems so that   documents currently available through PIA requests are made directly   downloadable; for example, through the Agency’s myplace Portal. This will   reduce delays and also increase resources within the Agency to assist with   processing FOI requests.
  

Department of Veterans’ Affairs

Whether the Department complied with statutory timeframes (s 15(5)(a))

Non-personal

4 March 2024

The complaint was substantiated.

The Department acknowledged its failing, apologised to the complainant, and implemented a revised approach to ensure future compliance.

One suggestion made:

  1. Monitor through   provision of weekly reports the Department’s adherence to statutory   timeframes under the FOI Act.

Not applicable.

Not applicable.

Department of Health and Aged Care

Whether the Department delayed in complying with a s 55K decision and providing the complainant with access to documents

Non-personal

1 March 2024

The complaint was substantiated.

The Department acknowledges that it failed to inform the complainant of the delays or issues in meeting the timeframe. The Department had taken numerous steps to improve its FOI processes since August 2021, including a comprehensive review of the FOI processes, procedures and resourcing, provision of training to all FOI officers, and a recruitment drive. It acknowledges that it could develop policies and guidelines for responding to s 55K decisions.

Three suggestions made:

  1. Where the Department anticipates that it may be unable   to meet the statutory timeframe, especially after completion of an IC review,   the Department should engage with the applicant as soon as possible to   communicate the delay and assure the applicant that the agency remains   committed to continuing to process the request as soon as possible.
  2. Where an incorrect FOI decision has been made, the   Department should endeavour to engage with the applicant by telephone prior   to sending the corrected decision to provide the applicant with further   information and assistance to promote the object of the FOI Act.
  3. Where the Department has been unable to meet the   statutory timeframe, the Department should ensure that correspondence to the   applicant clearly reflects this and includes the appropriate review rights.

Not applicable.

Not applicable.

Department of Health and Aged Care

Whether the Department took reasonable steps to ensure it understood the scope of the complainant’s request, particularly as part of the internal review process

Non-personal

28 February 2024

The complaint was substantiated.

Two recommendations made:

  1. As part of the   assessment in respect of the Notice of completion of 22 January 2024, the   Department’s FOI area also assess whether the changes to the Department’s   practices and procedures have been effective in ensuring better compliance   with the FOI Act and the Guidelines issued under s 93A of the FOI Act (FOI   Guidelines), with a particular focus on the Department’s internal review   processing being a fresh and independent determination of the request. This   includes:
    1. the internal review decision-maker ensuring that the   scope of the request has been properly understood and, if not, liaising   further with the applicant,
    2. the internal review decision-maker being satisfied that   the appropriate procedural steps have been followed by the original   decision-maker (such as internally liaising with the appropriate departmental   staff, appropriate searches have been undertaken, proper sampling has been   undertaken where appropriate, consulting with the applicant where   appropriate, documentation has been recorded of the processes, etc.) and if   not, ensuring that these steps are undertaken, and
    3. the internal review decision-maker seeks further   information from the applicant, or third parties, where appropriate, and
    4. the internal review decision-maker is satisfied that   they are making the correct and preferable decision.
  2. As soon as practicable, but no later than 2 weeks after   the assessment, the Department report the results of the assessment referred   to in paragraph (a) to the OAIC.
  

Department of Health and Aged Care

Whether the Department took reasonable steps to assist the complainant revise the request so that the practical refusal reason no longer existed

Non-personal

28 February 2024

The complaint was substantiated.

No recommendations were made.

The recommendations made to the Department on 22 January 2024 (see below) adequately address the identified deficiencies specific to this complaint. Therefore, no further formal recommendations were made in response to this complaint.

The OAIC will monitor compliance in response to Notice on completion of 22 January 2024.

Not applicable.

Not applicable.

Comcare

Whether Comcare should have notified the Information Commissioner of its request for an extension of time

Whether Comcare followed proper procedures in issuing the Charges Notice in respect of only a portion of the request

Whether Comcare adequately communicated with the complainant regarding the Charges Notice

Non-personal

27 February 2024

The complaint was substantiated.

Eight recommendations made:

  1. Comcare update its   draft FOI Charges policy to better reflect the FOI Act, Freedom of   Information (Charges) Regulations 2019 (Charges Regulations) and the   Guidelines issued under s 93A of the FOI Act (FOI Guidelines) by including a   statement confirming that a FOI applicant cannot be found liable to pay a   charge for a portion or part of a request.
  2. Comcare finalise   its FOI Charges Policy, make it available to FOI officers and publish a copy   on Comcare’s ‘Request access to information’ webpage[1] and Information Publication Scheme (IPS) in accordance with the FOI   Guidelines at [4.51].
  3. Comcare update its   FOI Procedure Manual to better reflect the FOI Act, the Charges Regulations   and the FOI Guidelines by including:
    1. a statement under the heading ‘Charges’ which directs   FOI officers to the FOI Charges Policy for further guidance on exercising the   discretion to find a person liable to pay a charge, as well as reducing or   not imposing a charge
    2. a paragraph under the subheading ‘FOI timeframes’ (p   21) which explains the expectation of clear communication with FOI applicants   regarding timeframes, particularly in circumstances where the timeframe   varies on multiple occasions
    3. an inclusion under the subheading ‘FOI timeframes’ (p   21) which explains that any extension of time agreed by the parties under s   15AA of the FOI Act must be reported to the OAIC as soon as practicable, but   preferably within 1 business day, and
  4. Once updated,   Comcare publish its FOI Procedure Manual to its ‘Request access to   information’[2] webpage and   IPS in accordance with the FOI Guidelines at [4.51].
  5. Comcare provide a   copy of the updated FOI Procedure Manual to the OAIC for consideration.
  6. Comcare undertake a   review of all of its decisions made since 28 February 2020 to the date of   this notice to ensure that all agreements made under s 15AA have been   reported to the OAIC.
  7. Comcare assess all   charges made since 27 June 2024 to 27 February 2025 to identify whether its   FOI officers are making decisions consistent with the updated FOI Procedure   Manual.
  8. Comcare report the   results of the assessment referred to in recommendation (f) to the OAIC as   soon as practicable after its completion, highlighting the feedback and   ongoing improvements in its practices and procedures over the 8-month period.

One suggestion:

  1. Before finalising   the FOI Charges Policy, Comcare gives careful consideration as to whether it   is appropriate to reference a $25 charge at [25] of the FOI Charges Policy   having regard to the FOI Act, the Charges Regulations, the FOI Guidelines and   the recent IC review decisions involving charges, particularly ‘ABX’ and   Department of Veterans’ Affairs (Freedom of information) [2022] AICmr 57. Noting, the discretion to not   impose a charge in circumstances where the cost of calculating the charge is   likely to exceed the amount of the charge itself.
  

Australian Broadcasting Corporation

Whether the ABC acknowledge, or processed, the complainant’s five (5) FOI requests

Personal

27 February 2024

The complaint was substantiated.

Four recommendations made:

  1. The ABC is to   provide the complainant with a statement of reasons in response to the   complainant’s five (5) FOI requests and, if relevant, provide access to the   relevant documents to accompany those reasons.
  2. The ABC’s FOI area   assess all requests received since 1 May 2020 up to 27 February 2024 to   identify any other requests received by the ABC that have not been processed   in accordance with the FOI Act and are therefore considered deemed pursuant   to s 15AC of the FOI Act.
  3. The ABC is to   acknowledge and process all outstanding requests identified as part of the   assessment referred to in recommendation (b). I confirm this process is not   required in respect of any deemed decisions which were subsequently finalised   through the IC review process, or for which the ABC subsequently provided a   statement of reason on its own accord.
  4. The ABC report the   results of the assessment referred to in recommendation (b) and (c) to the   OAIC, highlighting: the number of cases identified, the issuance of a   statement of reasons against each identified case, and any relevant feedback   from the applicant in each case.
  

Services Australia

Whether there were deliberate delays by Services Australia

Whether the Charges Notice was ‘void’ on the basis that the delegate did not sign the document

Whether the Charges Notice was issued out of time

Whether the exercise of the discretion to impose by Services Australia was properly done

Non-personal

27 February 2024

Services Australia’s decision to extend the processing time under s 15(6) of the FOI Act did not comply with the FOI Act or FOI Guidelines.

The Charges Notice was not ‘void’ on the basis that the delegate failed to sign it.

It was legally open to Services Australia to issue a Charges Notice; however, in doing so, Services Australia did not engage in practices appropriate to advancing the objects of the FOI Act, and particularly, to facilitate and promote public access to information, promptly and at the lowest reasonable cost (s 3(4) of the FOI Act).

Four recommendations made:

  1. Services Australia   must update its policies, training manuals, and/or guidance material to   accurately reflect the FOI Act and FOI Guidelines in respect of charges, to   include:
    1. FOI officers must consider whether it is appropriate to   find an FOI applicant liable to pay a charge before issuing a notice pursuant   to s 29(1) of the FOI Act ('Charges Notice')
    2. FOI officers must only issue a Charges Notice in   circumstances where they have undertaken sampling and have obtained an   accurate estimate of the charge, and
    3. FOI officers must document their reasons for justifying   the imposition of a charge where it has previously been decided that a   practical refusal reason exists but either through consultation or   Information Commissioner (IC) review, the practical refusal reason no longer   exists or is found not to exist.
  2. Services Australia   is to provide formal training supported by documentation to its staff engaged   in processing FOI requests with a particular focus on:
  3. the guiding principles of the charges framework,   including the discretionary nature of charges, and
  4. processes following IC review, with specific regard to   the objects of the FOI Act.
  5. Services   Australia’s FOI area assess all charges decisions made since 6 August 2020 up   to 23 February 2024. The assessment should seek to identify whether Services   Australia had, throughout that period, made other charges decision in a   manner inconsistent with ss 3(4) and 29 of the FOI Act, and which may need to   be revisited in light of the outcome of this FOI complaint, and
  6. Services Australia   report the results of the assessment referred to in recommendation c to the   OAIC, highlighting the feedback and ongoing improvements in its practices and   procedures since the implementation of the recommendations outlined above.

Accepted; to implement.

 

Department of Industry, Science and Resources

Whether the Department imposed charges which were disproportionate to the work required to process the requests

Whether the Department did not properly scrutinise the charge determined by the Australian Government Solicitor calculator (charges calculator)

Non-personal

26 February 2024

The complaint was substantiated.

The Department did not properly scrutinise the data input into the charges calculator and therefore cannot be satisfied that it represented an accurate preliminary assessment of charge.

Four recommendations made:

  1. The Department is   to amend its FOI Procedural Manual to state that there is an expectation when   using a charges calculator that the FOI officer undertake sampling to ensure   that the data input provides an accurate estimate.
  2. The Department is   to providing training to its FOI officers to ensure they are aware of the   expectation to undertake sampling when using a charges calculator.
  3. The Department’s   FOI area is to undertake a review of all Charges Notices and Charges   Decisions issued 26 February 2024 and 26 August 2024 to ensure that the   amendments to the FOI Procedural Manual have been effectively implemented   into the Department’s practices and procedures.
  4. The Department   report the results of the assessment referred to in paragraph (c) to the   OAIC. The report should also include steps the Department is seeking to take   to address circumstances where a charge was imposed using a charges   calculator and sampling was not undertaken.

Two suggestions made:

  1. The Department is   to upload the documents relevant to the complainant’s third request of 1   December 2020 (Department reference 67625) onto its disclosure log, or   provide submissions to the OAIC outlining the reasons why these documents   cannot be included on the disclosure log
  2. If relevant, the   Department is to advise the OAIC the documents have been uploaded to the   disclosure log and provide a link to the relevant documents.
  

Department of Health and Aged Care

Whether the Department provided adequate assistance to complainant so that she could pay a charge and secure release of documents requested under s 15 of the FOI Act

Non-personal

26 February 2024

The complaint was substantiated.

The Department acted inconsistently with the FOI Act, the Freedom of Information (Charges) Regulations 2019 and the FOI Guidelines in respect of finding the complainant liable to pay a charge.

Two recommendations made:

  1. The Department is   to update its FOI Guidelines/Procedure Manual such that it better reflects   the charges process in accordance with the FOI Act and/or FOI Guidelines. In   particular, the amendments should highlight the discretionary nature of   charges, the expectation that sampling will occur when using a charges   calculator, and the ongoing obligation of the Department to continue to be   satisfied that the charge should be imposed.
  2. The Department’s   FOI branch is to undergo training to ensure compliance with the updated FOI   Guidelines / Procedure Manual. Evidence of the training is to be created and   retained by the Department.

Two suggestions made:

  1. The Department give   consideration to providing the complainant with a full refund of the deposit   ($60)
  2. The Department is   to provide an update to the OAIC as soon as practicable as to whether a full   refund has been, or will be, provided.
  

Services Australia

Whether Services Australia is imposing charges on FOI applicants to deter them from perusing their requests

Non-personal

23 February 2024

The complaint was substantiated.

Four recommendations made:

  1. Services Australia   must update its policies, training manuals, and/or guidance material to   accurately reflect the FOI Act and FOI Guidelines in respect of charges, to   include:
    1. FOI officers must consider whether it is appropriate to   find an FOI applicant liable to pay a charge before issuing a notice pursuant   to s 29(1) of the FOI Act ('Charges Notice')
    2. FOI officers must only issue a Charges Notice in   circumstances where they have undertaken sampling and have obtained an   accurate estimate of the charge, and
    3. FOI officers must document their reasons for justifying   the imposition of a charge where it has previously been decided that a   practical refusal reason exists but either through consultation or   Information Commissioner (IC) review, the practical refusal reason no longer   exists or is found not to exist.
  2. Services Australia   is to provide formal training supported by documentation to its staff engaged   in processing FOI requests with a particular focus on:
  3. the guiding principles of the charges framework,   including the discretionary nature of charges, and
  4. processes following IC review, with specific regard to   the objects of the FOI Act.
  5. Services   Australia’s FOI area assess all charges decisions made since 6 August 2020 up   to 23 February 2024. The assessment should seek to identify whether Services   Australia had, throughout that period, made other charges decision in a   manner inconsistent with ss 3(4) and 29 of the FOI Act, and which may need to   be revisited in light of the outcome of this FOI complaint, and
  6. Services Australia   report the results of the assessment referred to in recommendation c to the   OAIC, highlighting the feedback and ongoing improvements in its practices and   procedures since the implementation of the recommendations outlined above.

Accepted; to implement.

 

Services Australia

Whether Services Australia undertook a proper consideration of the issues as part of the internal review process

Whether it was best practice for the original decision-maker and internal review decision-maker to be of the same classification level

Whether Services Australia’s ‘vetting process’ was appropriate

Whether Services Australia properly informed the complainant of his review rights and/or timeframes for review

Personal

23 February 2024

Services Australia gave proper consideration to the issues raised by the complainant in his request for an internal review.

The original decision-maker and internal review decision-maker were the same classification level, which is not best practice.

The vetting process of Services Australia in reviewing the draft internal review decision should be improved to better reflect the objects of the FOI Act.

Services Australia properly informed the complainant of his review rights and the timeframes for seeking review.

Two suggestions made:

  1. Services Australia   update it practices to ensure that an appropriately authorised more senior   officer conducts the internal review, as per best practice.
  2. Services Australia   implement systems to reflect the intent of the FOI Act to facilitate prompt access   to information at the lowest reasonable cost by ensuring that properly   authorised officers are responsible for decision making under the FOI Act.

Not applicable.

Not applicable.

Department of Health and Aged Care

Whether the Department took reasonable steps to assist the complainant revise the request so that the practical refusal reason no longer existed

Whether, as a result of not engaging in the request consultation process, the Department was unable to properly identify the documents within the scope of the FOI request

Non-personal

22 January 2024

The complaint was substantiated.

Two recommendations were made:

  1. The Department’s   FOI area is to assess all FOI decisions made since 22 January 2024 and 22   July 2024 to seek to identify whether the changes to the Department’s   practices and procedures have been effective in ensuring better compliance   with the FOI Act and the FOI Guidelines, with a particular focus on assisting   FOI applicants during the practical refusal process.
  2. As soon as   practicable, but not later than 2 weeks after the assessment, the Department   report the results of the assessment to the OAIC and also provide copies of   the Department’s relevant FOI Guidelines, polices and procedures.

Accepted; to implement.

 

NBN Co Ltd

Whether NBN was required to publish a decision to the ‘Right to Know’ website after administrative access to requested documents was provided

Non-personal

22 January 2024

The complaint was substantiated

Three recommendations were made:

  1. NBN is to develop   FOI procedures and/or guidelines which provides clear guidance to FOI   officers about processing requests in accordance with the FOI Act and FOI   Guidelines, including processing and releasing documents through   administrative access.
  2. As soon as   practicable, provide copies/links to the OAIC of the information described at   paragraph (a).
  3. NBN is to provide training for its FOI staff to ensure   they are aware of, and properly utilise, the FOI procedures and/or guidelines   prepared.

Two suggestions were made:

  1. NBN is to update   its FOI webpage to include information about administrative access requests   in accordance with the FOI Act and F OI Guidelines.
  2. As soon as   practicable, provide a link to the OAIC of the updated webpage.

Accepted; to implement.

 

Australian Taxation Office

Whether the ATO processed the request in a manner which was improper

Whether the ATO did so as a way of delaying access to documents required for separate legal proceedings

Personal

18 December 2023

Neither aspect of the complaint was substantiated.

No recommendations made.

Not applicable.

Not applicable.

Department of Industry, Science and Resources

Whether the Department should have transferred the request under s 16 rather than refusing the request under s 24A, on the basis that no documents exist

Non-personal

8 December 2023

The Department attempted to facilitate transfer of the complainant’s request under s 16 of the FOI Act and the appropriate agency refused to accept the transfer. The Department therefore had no option but to process the request, making its original decision that no documents exist under s 24A of the FOI Act.

However, the Department did not give consideration to the possible transfer of the request under s 16 of the FOI Act early enough in the processing of the request. The amount of time remaining to process the request was a relevant consideration of the appropriate agency to its decision not to accept transfer of the request.

The Department also did not seek the applicant’s agreement to an extension of the statutory processing timeframe under s 15AA of the FOI Act, which may have facilitated the appropriate agency’s agreement to accept transfer of the request, and

The Department did not take reasonable steps to assist the complainant to direct their request to the appropriate agency during the processing of the request.

No recommendations were made.

The Department acknowledged that it should have attempted transfer of the request to the receiving agency at an earlier stage of the processing of the request and because the Department had also already implemented remedial measures in relation to its processing of FOI requests where transfer under s 16 is contemplated.

Not applicable.

Not applicable.

Digital Transformation Agency

Whether, in issuing the charges notice, the Agency was acting in accordance with the ‘lowest reasonable cost’ principle

Whether the Agency’s process for considering if it was in the general public interest to waive the charge was consistent with the FOI Act and Guidelines

Whether the Agency considered the payment of the charge (in part or in full) waived his review rights

Non-personal

6 December 2023

The Agency, at the time of processing the complainant’s FOI request, did not properly comply with its obligations under s 29 of the FOI Act.

The Agency did not engage in practices appropriate to advancing the objects of the FOI Act, and particularly, to facilitate and promote public access to information, promptly and at the lowest reasonable cost (s 3(4) of the FOI Act).

Four recommendations were made:

  1. The Agency prepare   and promulgate formal guidance for staff to determine whether an FOI   applicant is liable to pay a charge, in accordance with s 29 of the FOI Act,   the Freedom of Information (Charges) Regulations 2019 (Charges   Regulations), and the FOI Guidelines. The Agency is to provide a copy of the   formal guidance to the OAIC.
  2. The Agency ensure   that all relevant staff have received training in relation to the formal   guidance referred to in recommendation a. The Agency is to provide   confirmation to the OAIC that all relevant staff have received this training.
  3. The Agency’s FOI   area assess all charges decisions made since 1 July 2019 up to 28 November   2023. The assessment should seek to identify whether the Agency had,   throughout that period, made other charge decisions in a manner inconsistent   with ss 3(4) and 29 of the FOI Act, and which may need to be revisited in   light of the outcome of this complaint.
  4. The Agency report   the results of the assessment referred to in recommendation c to the OAIC as   soon as practicable after its completion, highlighting the feedback and   ongoing improvements in its practices and procedures since the implementation   of the recommendations outlined above.

Accepted; to implement.

 

Department of Home Affairs

Whether the Department delayed processing the complainant’s FOI request

Whether the substance of the information released by the Department did not meet the terms of the complainant’s revised request

Non-personal

30 November 2023

The Department did not comply with s 15(5)(b) of the FOI Act when processing the complainant’s FOI request dated 29 March 2021, and

The Department misunderstood the scope of the complainant's revised request, resulting in the Department initially providing access to a document which did not meet the terms of the complainant’s revised request and resulted in further delays in processing the request.

No recommendations were made.

The OAIC did not make any formal recommendations on the basis that similar issues to those raised in this complaint have already been considered and addressed as part of the Commissioner Initiated Investigation into the Department of Home Affairs (CII),[3] as well as in other FOI complaints.[4] The OAIC is continuing to monitor the Department’s compliance with statutory timeframes to ensure that the recommendations of the CII and other complaints are implemented and operationalised.

Two suggestions were made:

  1. The Department   update its Processing non-personal Freedom of Information requests   Procedural Instruction (Procedural Instruction) at [1.4] to   contemplate a flexible approach to informal consultation, including emails   and telephone calls, to reflect the approach set out in the Guidelines   issued under s 93A of the FOI Act (FOI Guidelines) at [3.53].
  2. The Department   update its Procedural Instrument at p17 under the sub-heading ‘Practical   Refusal considerations’ to include guidance for officers undertaking the   sampling exercise in accordance with FOI Guidelines at [3.121].

Not applicable.

Not applicable.

Comcare

Whether the Agency complied with its obligations under s 11C of the FOI in relation to publication of information in its disclosure log

Whether the Agency complied with its obligations under s 8(2) of the FOI in relation to publication of information on IPS

Non-personal

27 July 2023

At the time of processing the complainant’s request, the Agency complied with its obligations under s 11C of the FOI Act.

The Agency's practices in relation to the publication of information under ss 8(2) and 11C of the FOI Act could be improved

One recommendation was made:

  1. That, in the absence of any   overriding legal obligation, the Agency publish the Claims Manual on the IPS   in accordance with s 8(2)(j) of the FOI Act.

Three suggestions were made:

  1. The Agency is   to implement technical solutions to support publishing documents for direct   access through the disclosure log webpage in an accessible format.
  2. The Agency is   to update the OAIC on expected timeframes for completion of information being   published directly on the Agency’s disclosure log webpage in an accessible   format.
  3. The Agency   consider placing a notification on its website advising it has launched a   project to provide a single source of information to replace the Claims   Manual in an accessible format for publication on the Information Publication   Scheme (IPS), with an expected timeframe for   completion.

Accepted; to implement.

 

Department of Prime Minister and Cabinet

Whether misinterpretation of FOI request resulted in misdirection of request to incorrect Department

Adequacy of the Department’s policies and procedures to distinguish FOI requests received via shared email between the Department and the Office of the Prime Minister (PMO)

Failure to consider transferring the FOI request

Whether the Department’s practices are consistent with the objects of the FOI Act in particular s 3(4) and relationship between ss 16 and 24AB of FOI Act

Non-personal

14 June 2023

The Department, at the time of processing the complainant’s FOI request, did not engage in practices appropriate to advancing the objects of the FOI Act, and particularly, to facilitate and promote public access to information, promptly and at the lowest reasonable costs (s 3(4) of the FOI Act). This is in circumstances where the Department:

  • did not engage   in early consultation with the complainant before making a judgement, in the   first instance, as to whether the FOI request was directed to the Department   or the PMO, nor before it commenced a formal request consultation process   under s24AB of the FOI Act. This is not consistent with the requirements of   the FOI Guidelines, particularly 3.55, 3.69, 3.72 and 3.128, and
  • ought to have   at least considered the exercise of its discretion conferred by
    s 16 of the FOI Act to transfer the complainant’s FOI request to the PMO,   which it was not precluded from doing.

Four recommendations were made:

  1. The Department create formalised written policies and/or procedures to   distinguish between FOI requests made to the Department and the PMO.
  2. The Department create formalised written policies and/or procedures to   rectify situations where a FOI request has been misdirected.
  3. The Department update any internal guidance to reflect the opinion and   conclusions reached in this investigation about the relationship between ss   16 24AB of the FOI Act.
  4. The Department advise the OAIC of implementation of each recommendation.

Two suggestions were made:

  1. The Department use separate email addresses for FOI requests directed to   the Department and PMO to avoid potential misdirect.
  2. The Department require applicants to specify (in an online form) whether   their FOI request is intended for the Department or PMO to avoid the   potential for misdirection.

Acknowledged; Recommendations implemented. Suggestions not implemented. Exploring   implementation of Suggestion 2.

No further action to be taken.

Department of Health and Ageing

Whether it is appropriate for the Department to notify a complainant it will consider a FOI request withdrawn if a response to its correspondence is not received within a specified timeframe under s15(5)

Whether a 14 day consultation processes in the terms of s24AB of the FOI was appropriate and notification the FOI request would be deemed withdrawn if a response was not received within 2 days

Non-personal

19 May 2023

It was inappropriate for the Department to state in correspondence that if the complainant did not reply to its correspondence within 2 days, the complainant’s FOI request would be considered withdrawn.

It is contrary to s 15(5) of the FOI Act to treat a request as ‘withdrawn’ if an applicant does not respond to correspondence from the Department within a specified timeframe.

The Department did not engage in a practical refusal process for likely exempt documents under s24AB and therefore a 14 day consultation period was not required.  In issue was whether it was appropriate for the Department to advise the complainant it would deem the FOI request withdrawn if it did not receive a response within 2 days. For the reasons outlined above, it was inappropriate for the Department to state it would deem the FOI request withdrawn within a specified timeframe.

Five recommendations were made:

1.The Department issue a statement to staff engaged in processing FOI requests highlighting the Department’s obligation under the FOI Act to process requests that comply with the formal requirements prescribed by ss 15(2) and (2A) and that, other than in the circumstances prescribed by s 24AB(7), an FOI request cannot be proactively taken by the Department to have been withdrawn.

2. The Department provide general training to its staff engaged in processing FOI requests with a particular focus on the obligation to process FOI requests and the limited circumstances in which a FOI request is, under the FOI Act, taken to have been withdrawn.

3. The Department update its policies, training manuals and/or guidance material as appropriate.

4. The Department undertake an audit of the processing of FOI requests received in the 6 month period following the implementation of the above recommendations to ascertain if there have been any other instances of an applicant being told that their FOI request would be taken to be withdrawn if a response to its correspondence is not received within a specified timeframe.

5. The Department report the audit results to the OAIC.

Accepted; to implement.

 

Department of Home Affairs

Whether the Department failed to assist the complainant to revise an FOI request under s 24AB(3) in relation to a practical refusal request consultation process

Whether the Department acted consistent with the objects of the FOI Act

Personal

3 May 2023

At the time of processing the complainant’s FOI request, the Department failed to fulfil its duties under s 24AB(3). More particularly, the Department through its contact officer failed to take reasonable steps to assist the complainant to revise their FOI request so that the practical refusal reason which the Department said existed ceased to exist. This failure was inconsistent with the objects of the FOI Act, particularly the object in s 3(4) to facilitate and promote public access to information promptly and at the lowest reasonable cost. The Department could have avoided this failure and better promoted the object of the Act had it adequately taken into account, and acted consistently with, the Guidelines issued under s 93A of the FOI Act (particularly paragraphs 3.131 and 3.133).

Four recommendations were made:

  1. The Department prepare and   promulgate formal guidance for staff about the conduct of the request   consultation process. The guidance should reflect the requirements of s 24AB   of the FOI Act including the duty imposed by s 24AB(3). The guidance should   also reflect the FOI Guidelines and promote direct contact (that is, contact   in person, by telephone or by web-based meeting rather than by email or other   writing) with FOI applicants, particularly where that contact is requested by   the applicant or where the circumstances of the particular matter suggest   that the statutory purpose of the consultation process will be better   achieved by such contact.
  2. The Department ensure that all   relevant staff have received training in relation to the formal guidance   referred to in recommendation 1.
  3. The Department undertake an   audit of all request consultation processes conducted in the period   commencing on the date of this notice and ending 6 months (2 November 2023)   after that date. The audit should assess whether the Department has,   throughout that period, maintained practices which are consistent with the   formal guidance referred to in recommendation 1.
  4. The Department   report the results of the audit referred to in recommendation 3 to the OAIC   as soon as practicable after its completion and no later than 2 weeks after   the audit report has been completed, even if the report has not been   considered by the Department’s Audit Committee at that time.

Noted by the Department.

 

Department of Veterans’ Affairs

Whether a notice of decision under s 26 of the FOI Act should include the signature, name and position of the person who has made the decision

Compliance with Disclosure log obligations

Non-personal

22 June 2022

There was a period of time during which the Department was clearly non-compliant with the requirements of s 26(1)(b) of the FOI Act.

The Department has altered its earlier practice so that the given name, position number and designation of the relevant staff member is included in a decision. In the Department’s specific circumstances, this altered practice is reasonable and results in the giving of valid notices under s 26.

The Department is complying with the requirements of s 11C(3) of the FOI Act.

No recommendations were made.

One suggestion was made:

  1. The Department review its capacity   to enable the direct downloading of relevant information by persons who wish   to obtain it and, absent a technical or resource barrier to doing so,   implement a direct download facility so as to improve this aspect of the Department’s information access processes.[5]

Not applicable.

Not applicable.

Australian Federal Police

Compliance with statutory timeframes for processing FOI request

Documents relevant to the request not appropriately stored

Handling of documents relevant to the request

Non-personal

17 June 2022

The AFP’s failure to ensure that documents were stored in accordance with AFP records management procedures resulted in the AFP failing to process the complainant’s FOI request within the statutory timeframe prescribed by s 15(5)(b) of the FOI Act.

It does not appear that there existed, or exist, sufficient escalation processes and procedures in place to enable the AFP’s FOI team to address circumstances of the kind which impacted on the processing of the complainant’s FOI request.

Remainder of the FOI complaint outside of the jurisdiction of the FOI Act.

One recommendation was made:

  1. The AFP update its relevant information management   guidance to include appropriate escalation points for the AFP FOI team to   follow where AFP personnel have not followed processes and procedures which   then impacts on the processing of FOI requests.

Two suggestions were made:

  1. That the   AFP consider whether it would be possible, within any resource or other   applicable constraints, to implement a process to create digital backups of all hard copy documents which may be the subject   of an FOI request and, if considered possible, to implement that process.
  2. That the AFP take appropriate action to ensure that   it can in any relevant case secure timely compliance by its officers and   employees with policies and requirements concerning the handling of documents   which may be the subject of an FOI request. This might include, for example,   the implementation of a process to ensure that hard copy documents are   returned to the Records Management Unit when an officer is posted overseas.   It might also include the exercise of formal powers, such as a power to give   or make directions applicable to employees or officers, to formally impose   appropriate obligations on employees or officers in relation to documents   which may be the subject of an FOI request (ie, if those formal obligations   do not already exist in connection with an employee’s employment or an   officer’s engagement).

Accepted and implemented.

No further action to be taken.

Australian Electoral Commission

Assistance provided to applicant during the consultation process

Compliance with the timeframe for notification of the Commission’s decision as set out in the related Information Commissioner decision

Non-personal

15 June 2022

At the time of processing the FOI request, when corresponding with the complainant, the Commission did not engage in practices appropriate to advancing the objects of the FOI Act.

The Commission did not comply with the timeframe set out in the Information Commissioner review decision and so failed to comply with s 55N of the FOI Act

Four recommendations were made:

  1. Update the   Commission’s proposed FOI processing procedure and guide to decision making   process and procedure document to reflect the opinions and conclusions   reached in this investigation in relation to each of the two matters   investigated.
  2. Provide to the   OAIC a copy of the FOI processing procedure and guide to decision making   process and procedure document as updated in accordance with recommendation   1.
  3. Provide to the   OAIC an update on the implementation of training of the FOI team which the   Commission indicated it would undertake following the 2022 general election.
  4. Provide a   formal apology to the complainant as proposed by the Commission.

Accepted and implemented.

No further action to be taken.

National Disability Insurance Agency

Acknowledgment of FOI requests in accordance with statutory timeframes

Documents relevant to requests sent to incorrect postal address

Non-personal

15 June 2022

The NDIA failed to acknowledge the complainant’s FOI requests within the statutory timeframes set out in s 15(5)(a) of the FOI Act.

The documents requested by the complainant under the FOI Act being sent to the incorrect postal address, despite the complainant’s notification of the change of address being provided to the NDIA, resulted in a failure to comply with s 15(5)(b) of the FOI Act.

No recommendations were made.

Not applicable.

Not applicable.

Australian Skills Quality Authority

Whether required assistance was provided to the applicant during the consultation process

Non-personal

14 June 2022

The purported consultation process was more appropriately considered in the related IC review process.

ASQA was not under any obligation to conduct a request consultation process under s 24AB of the FOI Act in relation to the internal review application.

The internal review applicant to revise the scope of the request was reasonable in the circumstances.

Three suggestions were made:

Update policies and procedures to include:

  1. Section 24AB of   the FOI Act does not apply in the context of an internal review process.
  2. An informal   consultation process similar to that prescribed by s 24AB generally will,   however, be appropriate where an internal review process raises the   likelihood of practical refusal under s 24 of the FOI Act.
  3. The informal consultation   process referred to in (2) above must occur within the period prescribed by s   54C(3) of the FOI Act or such further time, if any, as is allowed under s 54D   of the FOI Act.[6]

Not applicable.

Not applicable.

Veterans’ Review Board

Compliance with statutory timeframes for processing FOI request

Personal

14 March 2022

The VRB did not comply with the statutory processing period.

The non-compliance was attributable to an isolated IT fault which has been rectified, and that once the VRB was made aware of the FOI request by the OAIC, it took reasonable steps to process the FOI request.

No recommendations were made.

Not applicable.

Not applicable.

Australian Trade and Investments Commission

Extending the processing under s 15(6) of the FOI Act to conduct third party consultation and imposing a charge

Personal and non-personal

2 March 2022

Complaint not substantiated.

No recommendations were made.

Not applicable.

Not applicable.

National Disability Insurance Agency

Reasonable assistance provided to the applicant to lodge a valid FOI request

Personal

10 February 2022

The NDIA had not documented, operationalised processes and procedures to provide reasonable assistance to applicants under s 15(3) of the FOI Act

Two recommendations were made:

  1. That the NDIA   establish, document and operationalise a mechanism whereby individuals who   contact the agency by telephone can discuss the complexities of their FOI   request or potential FOI request with a suitably qualified officer. That   officer may be a member of the FOI team or the NCC.
  2. That the NDIA’s website be adjusted to provide clear advice to   individuals regarding how they can initiate telephone contact with a suitably   qualified officer in relation to their FOI request or their potential FOI   request.

Accepted and implemented.

No further action to be taken.

Services Australia

Search and retrieval processes and identification of documents within the scope of a request

Personal

10 February 2022

At the time of the complainant’s original FOI request, the documented search and retrieval processes that Services Australia had in place did not specifically draw officers’ attention to the requirement to identify relevant call recordings. resulted in the omission of relevant call recordings from the agency’s original FOI decision in this case.

The changes made to Services Australia’s search and retrieval template, to specifically refer to call recordings, will reduce the likelihood of call recordings being omitted from responses to FOI requests made to the agency in the future.

One recommendation was made:

  1. To review the training provided to   officers undertaking search and retrieval activities in response to FOI   requests to ensure it includes guidance regarding the requirement to identify   and retrieve call recordings in response to FOI requests, and the process for same.[7]

Accepted and implemented.

No further action to be taken.

Attorney-General’s Department

Acceptance of transfers under s 16 of the FOI Act

Non-personal

13 December 2021

The Department did not correctly apply the statutory test in s 16(1) of the FOI Act when it agreed to accept the transfer of an FOI request from the Attorney-General.

Two recommendations were made:

  1. The   Department update its AGD FOI   Procedures Manual: Standard procedures for processing FOI requests to the   Attorney-General’s Department in relation to the matters   required to be considered in accepting the transfer of FOI requests,   including but not limited to:
  2. whether the transferring agency demonstrated that it took   reasonable steps to search for documents that are the subject of the FOI   request and the Department is reasonably satisfied that either:
    • the transferring agency is not in possession of the   documents within the scope of the request (s 16(1)(a)) or
    • the transferring agency or minister has indicated why, and   the Department agrees, that the subject matter is more closely connected to   the functions of the Department (s 16(1)(b))
  3. where the Department accepts a transfer under s 16(1), it   should record the reasons why it has accepted the transfer, including (where   relevant) how the agency demonstrated it is not in possession of the   documents or why it considers the subject matter to be more closely connected   to the functions of the Department
  4. the option of transferring or accepting the transfer of   part of an FOI request in accordance with s 16(3A) of the FOI Act.
  5. The Department provide a report to   the Office of the Australian Information Commissioner (OAIC) on the   implementation of the amended procedures relevant to accepting the transfer   of FOI requests under s 16 of the FOI Act. This may take the form of a report following a review of matters transferred to the Department to ensure that   the amended procedures have been implemented.

Accepted and implemented.

No further action to be taken.

Australian Digital Health Agency

Acknowledgment of FOI requests in accordance with statutory timeframes

Extending the processing under s 15(6) of the FOI Act to conduct third party consultation

Delay in responding to FOI request

Non-personal

2 December 2021

  • The ADHA failed   to acknowledge one FOI request within the period required by s 15(5)(a) of   the FOI Act.
  • The ADHA reasonably formed the view that   consultation with a third party was required and notified the complainant of   the extension of the processing period for this purpose as required by the   FOI Act.
  • The ADHA   attempted to delay the processing of the FOI request, when it corresponded   with the complainant to advise them that they must submit a new FOI request   to a different email address in order for the request to be valid, when the   original request was validly made.

Four recommendations were made:

  1. The ADHA review its internal policies, procedures and   practices to clarify that the processing periods for valid FOI requests   commence from the day the request is received by the agency, even if the   request is not sent to the FOI team until a later day, and that FOI request   are not invalid only because they were not sent to the email address   specified pursuant to s 15(2A).
  2. The ADHA review its processes and procedures to ensure   that FOI requests are acknowledged within 14 days of receipt and that   decisions are provided within the relevant statutory processing period.
  3. The Chief Executive Officer issue a statement to all   staff, highlighting the ADHA’s obligations under the FOI Act and   pro-disclosure emphasis of the Act, this statement should encourage and   support staff in meeting their obligations under the FOI Act, to facilitate and promote public access to information, promptly and at the lowest   reasonable cost.
  4. The ADHA appoint a member of the Executive to be the   agency’s Information Champion, to foster and promote compliance with the   objectives and requirements of the FOI Act.

Accepted and implemented.

No further action to be taken.

Department of Home Affairs

(17 matters)

Compliance with statutory timeframes for processing FOI request

Personal

25 November 2021

The Department did not comply with the statutory processing period.

Four recommendations were made:

  1. The Department prepare and implement an operational   manual for processing FOI requests for personal information to be approved by   the Information Champion. The   operational manual is to include, at a minimum, the steps that will be taken   to ensure compliance with statutory processing requirements. Consistent with the   requirements of the Information Publication Scheme, the operational manual should be made publicly available by the Department on its website.
  2. The Department   ascertain the additional resources (human or otherwise) anticipated to be   required in order to meet statutory timeframes (taking account of the   improvements through implementing recommendation 1) and provide an action   plan to meet those requirements.  
  3. The Department:
    1. undertake and complete training on the   operational manual for FOI Section staff and other staff (both decision   makers and other staff who assist decision makers).
    2. ensure that online training in processing   FOI requests for personal information is available to all staff of the   Department, and
    3. ensure that new staff joining the FOI   Section are trained in relation to the operational manual within 2 weeks of   commencing in the FOI Section.
  4. The Department undertake an audit of   the processing of FOI requests for personal information to assess whether   Recommendations 1, 2and 3have been implemented and   operationalised and whether those actions have been sufficient to address the   issues identified in these complaints. The audit is to be undertaken by   either the Department’s internal auditors or by an external auditor, as   determined by the Department. A copy of the audit report should be provided   to the OAIC.

Noted by the Department.

 

Department of Foreign Affairs

Compliance with statutory processing periods

Administrative access arrangements

Exercising a discretion to impose a charge

Incorrect refund form provided

Non-personal

11 November 2021

The Department did not comply with the statutory processing period.

No adverse findings or recommendations made in relation to remaining issues.

Three recommendations were made:

  1. The Department   appoint an Information Champion. The Information Champion may be supported by   an information governance board to provide leadership, oversight and   accountability necessary to promote and operationalise the Department’s   compliance with the FOI Act.
  2. The Department   should develop and implement a compliance action plan include an explanation   and assessment of the reasons for non-compliance with the statutory   processing period for the 2019-20 and 2020-21 financial years and proposals   to improve compliance, including in relation to:
  3. adequacy of   resources
  4. training
  5. operational   improvements and
  6. proposals for   how the Department will comply with the statutory processing period in   relation to any backlog of outstanding FOI requests as well as new requests.

3.   The Department should provide an implementation report,

including statistical evidence and analysis to demonstrate the

effectiveness of the implementation of the compliance action

plan in recommendation 2 and whether the reasons for non-

compliance identified in the compliance action plan have been

rectified.

Accepted and implemented.

No further action to be taken.

Australian Federal Police

Compliance with statutory timeframes for processing FOI request

Personal

27 October 2021

The AFP did not comply with the statutory processing timeframe which is attributable to:

  • the failure of business areas to provide   documents at issue to the FOI section and/or the time taken in the subsequent   processing by the FOI section.
  • the AFP’s late consideration of   whether an extension of time is required in relation to the processing of FOI   requests.

Two recommendations were made:

  1. The AFP should   develop and implement a compliance action plan and provide a copy of that   plan to the OAIC. The compliance action plan should include an explanation   and assessment of the reasons for non-compliance with the statutory   processing period for the 2019-20 and 2020-21 financial years and proposals   to improve compliance, including in relation to:
  2. adequacy of   resources
  3. training
  4. operational   improvements and
  5. proposals for   how the AFP will comply with the statutory processing period in relation to   any backlog of outstanding FOI requests as well as new requests.

2.  The AFP should provide an implementation report to the

OAIC, providing statistical evidence and analysis to

demonstrate the effectiveness of the implementation of the

compliance action plan in recommendation 1 and whether

the reasons for non-compliance identified in the compliance

action plan have been rectified.

Accepted and implemented.

No further Action to be taken.

Department of Veterans’ Affairs

Compliance with statutory timeframes for processing FOI request

Personal

19 October 2021

The Department complied with the statutory processing timeframes.

No recommendations were made.

Not applicable.

Not applicable.

Department of Veterans' Affairs

Compliance with statutory timeframes for processing FOI request

Personal

12 October 2021

The Department did not comply with the statutory processing period due to an internal administrative error identifying the FOI request where the FOI request had delay in providing it to the FOI team.

No recommendations were made.

Given the steps that the Department took upon becoming aware of the FOI request, including engaging with and providing an explanation to the complainant, processing the request and apologising to the complainant, no recommendations were made.

Accepted.

No further Action to be taken.

Services Australia

Compliance with Information Publication Scheme (IPS)

Imposition of charges for documents held on the IPS requested under the FOI Act

Non-personal

7 October 2021

Services Australia complied with the Act when it listed titles of operational documents on its IPS. However, Services Australia’s process of requiring individuals to lodge an FOI request for access to documents is only appropriate where the agency has a robust and reliable process to routinely consider whether the reasons for not publishing the documents continue to apply.

Two recommendations were made:

1. Develop and implement a system to ensure that:

  1. decisions taken by business areas in relation to the   publication of operational information are consistent with Part II of the FOI   Act, and
  2. decisions taken by business areas not to publish   particular OBPs are periodically reviewed to determine whether the reasons   for non-publication continue to apply to the OBP.

2. Develop and implement systems and processes to ensure that,

where Services Australia exercises its discretion to impose a

charge under s 29, that decision is consistent with both the

relevant statutory provisions, the FOI Guidelines and its

obligations under Part II of the FOI Act.

Accepted and implemented.

No further action to be taken.

Department of the Prime Minister and Cabinet

Compliance with statutory timeframes for processing an FOI request

Non-personal

5 October 2021

The Department did not comply with the statutory processing timeframe.

Two recommendations were made:

  1. The Department appoint an Information Champion. The Information   Champion may be supported by an information governance board to provide   leadership, oversight and accountability necessary to promote and   operationalise the Department’s compliance with the FOI Act.
  2. The Department provide training to FOI Section staff   and relevant Senior Executivesabout the obligations under the FOI Act   to comply with statutory processing periods.

Accepted findings. Response received.

 

Department of Veterans' Affairs

Compliance with statutory timeframes for processing FOI requests

Compliance with s 29 of the FOI Act

Non-personal

24 September 2021

The Department did not comply with the statutory processing timeframes in relation to three FOI requests.

The Department did not comply with s 29(6) in relation to one FOI request

One recommendation was made:

1. The Department develops and makes available to staff an operational manual for processing FOI requests that should include, at a minimum, the steps that will be taken to ensure compliance with statutory processing requirements, including in relation to:

  1. meeting processing timeframes under the FOI Act
  2. the steps to be taken when notifying an applicant of the   imposition of a charge, including the obligation to provide a decision in   accordance with s 29(6).

Accepted; to implement.

No further action to be undertaken.

Australian Building and Construction Commission

Extending the statutory processing period to conduct third party consultation and related communication with the FOI applicant

Transfer of FOI requests under s 16 of the FOI Act

Non-personal

22 September 2021

It was open to the ABCC to extend the processing timeframe for the FOI request to conduct consultation with third parties under s 27A of the FOI Act, even in circumstances where the subsequent consideration of the documents resulted in a conclusion that consultation was not necessary because the documents initially considered in scope were found to be outside the scope of the request. However, it was not open to the ABCC to extend the timeframe in circumstances where the documents had not been identified or considered against the requirements of s 27A.

The consent of the FOI applicant is not required for the transfer of a request under

s 16 of the FOI Act.

Three recommendations were made:

1.The ABCC should provide guidance to FOI officers to ensure that, prior to extending the processing periods as permitted by s 15 of the FOI Act, proper consideration is given to the statutory prerequisites to the exercise of that power.

2. That the ABCC review its correspondence with FOI applicants to ensure that it is clear, accurate and not misleading.

3. That the ABCC implement systems and processes to ensure that

the ABCC understands and adheres to FOI processing

timeframes.

Accepted and implemented.

No further action to be taken.

Services Australia

Compliance with Information Publication Scheme (IPS)

Where Services Australia has decided not to publish the document – the reason why it is considered exempt should be published

Non-personal

17 September 2021

Services Australia was not required to list the applicable FOI Act exemption against the title of an unpublished document.

Services Australia complied with the Act when it listed titles of operational documents on its IPS.

However, the agency’s reliance on requests from the public to reconsider earlier decisions not to publish those documents, in the absence of a more systematic process, is not consistent with the ongoing obligations under Part II of the FOI Act.

One recommendation was made:

1. Develop and implement a system to ensure that:

  1. decisions taken by business   areas in relation to the publication of operational information are   consistent with Part II of the FOI Act, and
  2. decisions taken by business   areas not to publish particular OBPs are periodically reviewed to determine   whether the reasons for non-publication continue to apply to the OBP.

Accepted and implemented.

No further action to be taken.

Department of Foreign Affairs and Trade

Impartiality of the Internal Review decision maker

Non-personal

17 September 2021

No evidence before the Commissioner which supported the complainant’s contentions.

No recommendations were made.

Not applicable.

Not applicable.

Services Australia

Compliance with Information Publication Scheme (IPS)

Imposition of charges for documents held on the IPS requested under the FOI Act

Non-personal

8 September 2021

At the time of the complaint, Services Australia did not meet its obligation to publish operational information as required by s 8(2)(j).

Services Australia failed to have adequate systems and processes in place to confirm that business areas were appropriately considering their IPS obligations at the time that Operational Blueprints (OPBs) were created or to ensure that documents appropriately categorised under s 8C were regularly reviewed to consider whether s 8C continued to apply.

Services Australia did not deliberately withhold documents that were required to be published under the IPS for the purpose of improperly imposing a charge in relation to access requests for those documents, as alleged in the complaint.

Two recommendations were made:

1. Develop and implement a system to ensure that:

  1. decisions taken by business   areas in relation to the publication of operational information are   consistent with  Part II of the FOI   Act, and
  2. where a decision is taken   not to publish an OBP – either because it does not comprise operational   information or is exempt under s 8C of the FOI Act – that decision is   recorded
  3. decisions taken by business   areas not to publish particular OBPs are periodically reviewed to determine   whether the reasons for non-publication continue to apply to the OBP.

2. Services Australia staff adheres to current internal policies to consider the potential administrative release of OBPs in response to access requests before considering whether a charge should be applied under s 29 of the FOI Act for access to those materials.

Accepted and implemented.

No further action to be taken.

Department of Defence

The Department’s consultation process conducted during the processing of an FOI request

Personal information

17 February 2021

The Department’s FOI manual sets out the procedure for conducting consultations with third parties. The Department did not consult with the complainant where it was ‘possible to consult’ and ‘reasonably practicable’ to do so.

One recommendation was made:

1. Issue a statement to staff engaged in processing FOI requests

highlighting the Department’s obligations under the FOI Act to

consider whether a person might reasonably wish to make a

contention that the document is conditionally exempt under s

47F of the FOI Act (s27A(1)(b)). The statement should highlight

the importance of following the Department’s processes and

procedures when processing and making decisions on FOI

requests where third party information is contained within

documents that fall within the scope of an FOI request.

Accepted and implemented.

No further action to be taken.

Department of Defence

Collection of charges amounts

Non-personal

17 December 2020

The Department’s process that required an invoice to be raised before allowing a FOI applicant to make a payment in order to recommence the processing period is inefficient and does not facilitate and promote public access to information, promptly and at the lowest reasonable cost.

Two suggestions were made:

  1. Update its   guidance to ensure that, where there has been an overpayment of a charges   amount, the FOI applicant is to receive a refund in accordance with   regulation 10(4)(a) of the FOI Charges Regulations.
  2. The Department   adjust the way it administers charges to:
  3. Provide payment   options at the time of issuing a preliminary charges notice and
  4. Accept payment   of the charge as notification in writing by the applicant of acceptance of   the charge.[8]

Accepted and suggestions implemented.

No further action to be taken.

Department of Home Affairs

This investigation was a Commissioner Initiated Investigation under s 69(2) of the FOI Act.

A copy of the Report is available here.

Compliance with statutory timeframes for processing FOI request for non-personal information

Non-personal

11 December 2020

The information considered in this investigation indicates that the Department does not have adequate governance and systems of accountability in place to ensure compliance with statutory time frames for processing FOI requests for non-personal information.

The other key findings from my investigation may be summarised as follows:

  1. In a general sense, a greater   degree of senior level support and leadership for embedding policies,   procedures and systems of accountability for compliance with the statutory   processing periods in the FOI Act, would assist the Department in meeting the statutory processing period requirements of the FOI Act.
  2. With regard to the Department’s FOI   Section:
    1. There is evidence that not all of   the staff within the FOI Section are available to assist in the processing of   FOI requests for non-personal information which has contributed to delays in   processing these FOI requests.
    2. The policies and processes that the Department has in place for the FOI   Section do not address the steps required, both in relation to escalation and   finalisation of decisions, where delays are contributed to by business areas   of the Department or third parties.
    3. The policies and processes that the Department has in place for FOI   requests for non-personal information do not adequately address use of the   provisions of the FOI Act which enable an agency to seek an extension of time   in processing FOI requests.
  3. With regard to the business areas of the Department:
    1. The Department has implemented an approach for processing FOI requests   for non-personal information that requires significant engagement by the   staff in the business areas to which a relevant FOI request relates.  The training and resources made available to those staff does not facilitate processing FOI requests within the FOI Act   statutory processing periods.
    2. The Department’s processes for   consulting with senior staff, the Department’s Media Operations and   Minister’s Office in relation to FOI requests limits the ability of the   Department to meet FOI Act statutory processing periods.

There are inadequate policies and procedures in place to support compliance with the requirements of section 6C of the FOI Act.

Four recommendations were made:

  1. Appoint an Information Champion

    The Information Champion may be supported by an information governance board to provide leadership, oversight and accountability necessary to promote and operationalise compliance by the Department.

  2. Operational Processes and Procedures

    The Department prepare and implement an operational manual for processing FOI requests for non-personal information to be approved by the Information Champion referred to in Recommendation 1 and at a minimum:

    (a)     specify the steps that will be taken to ensure compliance with statutory processing requirements (as set out in more detail in Part 5),

    (b)     specify the steps that will be taken to ensure compliance with section 6C of the FOI Act and the processes to be adopted to request documents from contracted service providers, and

    (c)     include a short form guidance note to assist business areas in processing FOI requests for non-personal information.

    Consistent with the requirements of the Information Publication Scheme, the operational manual should be made publicly available by the Department on its website.

    The steps that will be taken to ensure compliance with section 6C of the FOI Act, as referred to in subparagraph (c), should be replicated in all other policies of the Department which relate to contractual requirements for procurement by the Department.

  3. Training

The Department:

  1. undertake and complete training for FOI Section staff and other staff (both decision makers and other staff who assist decision makers), and
  2. ensure that online training in processing FOI requests for non-personal information is available to all staff of the Department.

New staff joining the FOI Section should be trained within 2 weeks of commencing in the FOI Section.

  1. Audit of Compliance

The Department undertakes an audit of the processing of FOI requests for non-personal information to assess whether Recommendations 2 and 3 have been implemented and operationalised and whether those actions have been sufficient to address the issues identified in this CII.  The audit should be undertaken either by the Department’s internal audit committee or by an external auditor, as determined by the Department.  A copy of the audit report is to be provided to the OAIC.

Accepted; to implement.

 

The Australian National University (the ANU)

Compliance with statutory timeframes. Communication regarding the processing delays

Personal information

14 September 2020

The statutory timeframe was not extended by agreement under s 15AA, or as a result of consultation (ss 15(6), 15(8), 26A, 27, 27A), or under ss 15AB or 15AC.

The ANU exceeded the statutory processing period by 26 days without authority.

The ANU updated the complainant about the processing of the request and provided reasons for the delay.

Two recommendations were made:

1. The ANU should update its ‘Guideline 1.15: Freedom of Information processing checklist’ and ‘Guideline 1.18: Freedom of Information request processing timeframes’ to require staff to conduct an early assessment of whether an extension of time may be required and if so, to seek agreement from the FOI applicant to extend the processing period under s 15AA.

2. The ANU should update its ‘Guideline 1.15: Freedom of Information request processing checklist’ and ‘Guideline 1.18: Freedom of Information request processing timeframes’, to require staff to consider whether it is appropriate to seek an extension of time pursuant to s 15AB where an applicant has not agreed to extend the statutory processing period under s 15AA, or to seek an extension of time from the Information Commissioner under s 15AC where a decision about an FOI request has not been provided to the applicant within the statutory processing period.

Accepted and implemented.

No further action to be taken.

Airservices Australia

Acknowledgment of FOI requests in accordance with statutory timeframes

Taking reasonable steps to conduct searches for documents within scope of the FOI request

Withholding documents which fell within the scope of the FOI request

Compliance with s 26 of the FOI Act

Personal information

23 April 2020

At the time of the request, Airservices did not have a formalised process by which employees could access their personnel records.

Airservices did not comply with ss 15(5)(a) and 26 of the FOI Act.

During the processing of the request Airservices did not take reasonable steps to identify documents within the scope of the request.

Airservices reduced the scope of the FOI request without agreement from the applicant.

Four recommendations were made:

  1. Airservices   to issue a statement to all staff reminding them of their obligations under   the FOI Act
  2. Airservices   to establish a general FOI training program for inclusion in its induction   process and finalise policies which outline the procedures to follow when processing   an FOI request.
  3. Airservices   to write to each FOI applicant within the past 12 months of which the FOI   complaint was made and advise them of their review rights.
  4. Airservices   to conduct an audit within 6 months to track compliance of:
  5. Policies and   procedures and
  6. Section 26   Notices

Accepted and implemented.

No further action to be taken.

Services Australia[9]

Consultation process under s 24AB of the FOI Act and internal review process

Personal information

18 February 2020

Consultation process was more appropriately considered in the related IC review process and subsequent decision by the Information Commissioner under s 55K of the FOI Act. Services Australia’s internal review process complied with s 54C of the FOI Act.

No recommendations were made.

Not applicable.

Not applicable.

Department of Home Affairs

Compliance with statutory processing periods[10]

Non-personal information

19 December 2019

The Department did not comply with
s 15(5)(b) of the FOI Act.

No recommendations were made.

The Information Commissioner deferred making any recommendations until the outcome of the Commissioner Initiated Investigation into the Department of Home Affair’s compliance with statutory processing periods for non-personal FOI requests. [11]

Not applicable.

No further action to be taken pending the outcome of the CII.

Services Australia[12][13]

Approach to the interpretation of the scope of FOI requests

Approach to processing FOI requests relating to the OCI System

Compliance with s 24AB of the FOI Act

Combining FOI requests under s 24(2) of the FOI Act

Imposition of a charge

Payment of charges

Disclosure Log content

Delays in the provision of documents

Non-personal and personal

5 December 2019

Services Australia took a narrow approach to requests for information and did not attribute the plain English meanings to the terms used by applicants when that meaning was ascertainable in satisfaction of paragraph 15(2)(b) of the Act.

Services Australia did not comply with the request consultation process under s 24AB.

Services Australia did not take into consideration relevant public interest factors when deciding if applying charges is appropriate

At the time the decisions were made in the relevant FOI requests, Services Australia’s processes for collecting charges imposed under the FOI Act were inconsistent with the objects of the Act

Services Australia did not comply with its obligations under s 11C(6) of the FOI Act in relation to the maintenance of its disclosure log.

Services Australia did not have clear guidance for its FOI officers on:

  1. timeliness to respond to request   for assistance during consultation process
  2. consideration of whether it is   appropriate to transfer requests under s 16 once a scope has been revised
  3. appropriate response times for the   provision of documents on the disclosure log
  4. combining of requests under s 24(2)   of the FOI Act, and
  5. making a decision to impose a   charge.

Seven recommendations were made:

  1. A statement is provided to staff highlighting Services Australia’s obligations under the FOI Act and the pro disclosure emphasis in the Act. This statement should encourage and support staff in meeting their obligations under the FOI Act, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
  2. Services Australia take an approach to interpreting the scope of FOI requests in accordance with its obligations under s 15(3) of the FOI Act in a manner that as far as possible, seeks to facilitate and promote public access to information.
  3. Services Australia develop a policy that provides that where information that is subject to multiple FOI requests, it is uploaded onto the disclosure log as soon as practicable.
  4. Services Australia update its FOI manual to include references to recent Information Commissioner decisions and FOI Guidelines on:
  1. the imposition of charges
  2. the interpretation of scope and s   24AB process.
  3. consideration of s 16 transfers   once the scope has been revised
  4. the provision of documents as soon   as practicable under s 11A
  5. responding to requests for documents held on the disclosure log which   are otherwise not readily available, within five working days.
  6. where there are multiple requests   for the same subject matter, implement a process through which they can   identify and utilise work previously undertaken.
  7. when it is appropriate to combine   requests under s 24(2).
  8. factors to consider whether to impose a charge, including factors set   out in the Guidelines issued under s 93A of the Act.
  9. The adherence to the FOI processing   manual by FOI officers in relation to matters the subject of recommendations   four and five above.
  1. Services Australia update its FOI manual to include guidance about:
  2. Services Australia within six months[14] of these conclusions conduct audits on the following and report back to the OAIC:
  3. Services Australia ensure processes are in place to assist applicants through the s 24AB consultation process.

Accepted and implemented.

No further action to be taken.

Services Australia[15]

Acknowledgment of FOI requests in accordance with statutory timeframes

Personal and non-personal information

22 November 2019

Delay in acknowledging the FOI requests was due to the complainant sending the FOI request as part of ‘shared’ correspondence addressed to the aged care pension claims nominated PO Box rather than addressed to the FOI or central PO Box, and human error in categorising the documents as FOI requests at the mail sorting stage.

Two recommendations were made:

  1. To provide   general FOI training to the external providers tasked with opening and   categorising correspondence to assist in the identification of FOI requests   sent to general Departmental post boxes.
  2. To review and   update its guidance material in line with the findings of the investigation.

Accepted and implemented.

No further action to be taken.

Australian Federal Police

Compliance with statutory processing timeframes

Non-personal information

22 November 2019

The AFP did not comply with the statutory processing periods in processing 34.44% of FOI requests in the 2017-18 financial year and 53.08% in the 2018-19 financial year.

Three recommendations were made:

  1. A statement to   be issued to all staff highlighting the AFP’s obligations under the FOI Act.
  2. A review of its   guidance relating to early assessment of whether an extension of time or   consultation may be required.
  3. A review and   update its guidance material in line with the findings of the investigation.

Accepted and implemented.

No further action to be taken.

Department of the Prime Minister and Cabinet

Compliance with statutory processing timeframes

Non-personal information

22 November 2019

The Department did not comply with the statutory processing periods in processing 35.56% of FOI requests in the 2017-18 financial year and 72.65% in the 2018-19 financial year.

Four recommendations were made:

  1. A statement to   be issued to all staff highlighting the Department’s obligations under the   FOI Act.
  2. FOI requests   are processed in accordance with the objects of the FOI Act.
  3. The development   of policies and procedures in relation to administrative access.
  4. Conduct a   review and audit of the Department’s FOI processing guidance material and its   compliance with statutory timeframes.

Accepted and implemented.

No further action to be taken.

[1] As at 12 July 2022.

[2] See report available at Commissioner initiated investigation into the Department of Home Affairs | OAIC.

[3] See the OAIC’s Freedom of Information Investigation Outcome’s table, specifically the Notice on Completions of 25 November 2021 and 3 May 2023.

[4] Suggestion made under s 87(d) of the FOI Act.

[5] Suggestions made under s 87(d) of the FOI Act.

[6] Suggestion made pursuant to s 87(d) of the FOI Act.

[7] Suggestions made pursuant to s 87(d) of the FOI Act.

[8] At the time this investigation commenced the responsible department was the Department of Human Services. On 29 May 2019, the Administrative Arrangements Order established Services Australia.

[9] This investigation combined 11 FOI complaints made under s 70 of the FOI Act. Due to the overlapping issue raised in each FOI complaint the Information Commissioner progressed all 11 complaints together.

[10] Each FOI request forms a case study in the Commissioner Initiated Investigation into the Department of Home Affairs compliance with statutory processing periods for non-personal requests for information.

[11] At the time this investigation commenced the responsible department was the Department of Human Services. On 29 May 2019, the Administrative Arrangements Order established Services Australia.

[12] This investigation combined three FOI complaints made under s 70 of the FOI Act. Due to the overlapping issues raised in each FOI complaint the Information Commissioner progressed all three complaints under one investigation.

[13] On 8 July 2020, the Information Commissioner granted an extension of time to respond to recommendation six until 30 October 2020.

[14] At the time this investigation commenced the responsible department was the Department of Human Services. On 29 May 2019, the Administrative Arrangements Order established Services Australia.

[15] On 8 July 2020, the Information Commissioner granted an extension of time to respond to recommendation six until 30 October 2020.

[16] At the time this investigation commenced the responsible department was the Department of Human Services. On 29 May 2019, the Administrative Arrangements Order established Services Australia.