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Australian Government’s Budget decision to disband OAIC

OAIC functions — operational update

15 May 2015

Freedom of information

The Office of the Australian Information Commissioner (OAIC) has received transitional funding of $1.7 million for 12 months pending the implementation of the Government’s measure “Smaller Government — Privacy and Freedom of Information functions — new arrangements”. As a result, the OAIC will continue to conduct Information Commissioner reviews. The review process has been streamlined to ensure efficient and timely handling of reviews by the OAIC, including early finalisation of some matters by allowing an applicant to apply directly to the Administrative Appeals Tribunal. Currently, the OAIC is generally actioning reviews within 30-60 days of receipt. The Commonwealth Ombudsman continues to handle all freedom of information complaints. The Attorney Generals’ Department continues to handle agency statistical reporting, advice and guidelines. The OAIC’s budget allocation for 2015–16 does not include activities in the area of Information Policy.

Privacy

The OAIC has a full program of work planned including privacy complaint resolution, a strategic assessment program, Commissioner initiated investigations, and the provision of education materials for the community and public and private sectors.

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OAIC to remain operational until further notice

8 December 2014

The Freedom of Information Amendment (New Arrangements) Bill 2014, which proposes the closure of the Office of the Australian Information Commissioner (OAIC) on 31 December 2014, was not considered by the Senate before the end of the 2014 sitting period.

The OAIC will therefore remain operational until further notice. We are liaising with the Australian Government about transition arrangements for freedom of information matters. In the meantime, Information Commissioner reviews will continue to be handled by the OAIC. Freedom of information (FOI) complaints will be referred to the Commonwealth Ombudsman. The OAIC will continue to administer other statutory elements of the Freedom of Information Act 1982 including Extension Of Time applications. The OAIC will also continue to administer the Privacy Act 1988. More information will be provided as soon as it is available.

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Review rights and the FOI (New Arrangements) Bill

30 November 2014

The Freedom of Information Amendment (New Arrangements) Bill 2014 proposes changes to an applicant’s right to seek review of a freedom of information (FOI) decision.

Currently, an FOI applicant can choose to seek review of an access refusal decision in two ways:

  • internal review: an application must be made within 30 days
  • Information Commissioner review (IC review): an application must be made within 60 days.

The Bill is proposed to come into effect on 1 January 2015.

Upon commencement of the New Arrangements Bill, the only option for review of an initial access refusal decision will be to make an application for internal review, which must be made within 30 days.

When the Bill commences, an applicant seeking review of a decision made between 30 and 60 days beforehand, will lose that right to apply for IC review.

Section 54B gives agencies the discretion to accept an application for internal review even after the 30‑day time limit. The Bill will not change that provision. The Office of the Australian Information Commissioner (OAIC) encourages agencies to exercise that discretion and accept applications for internal review from applicants who have been affected in this way: that is, from applicants seeking review outside the 30‑day time limit, having lost the right to apply for IC review.

Agencies should also consider advising applicants to apply for IC review prior to 31 December 2014, where eligible, to have the option of seeking review by the Administrative Appeals Tribunal under the new arrangements from 1 January 2015.

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OAIC operations and processing times

8 October 2014

'Recent media reports on the introduction of the Freedom of Information Amendment (New Arrangements) Bill 2014 (the Bill) have incorrectly suggested that the Office of the Australian Information Commissioner (OAIC) has largely ceased undertaking freedom of information (FOI) review work.

The OAIC is operational and active and will remain so until 31 December 2014. Last week, the OAIC issued a statement that sets out how FOI and privacy matters are currently being handled, and what will happen if the Bill is passed.

The OAIC is managing to resolve a high volume of current FOI review cases, so that they are not affected by any transitional arrangements under a new law. In 2014 the OAIC has published to date 101 Information Commissioner review (IC review) decisions. In the 2013-14 reporting year the number of completed IC review decisions jumped by 54% (from 419 to 646), and the time lag in opening new cases reduced from 206 to 40 days.

The OAIC’s privacy case review work is unaffected by the proposed legislative changes. A high volume of privacy enquiries and complaints are currently received and dealt with. After 31 December 2014 the Privacy Act 1988 will continue to apply to the same organisations and agencies. After that date, privacy matters will be transferred to and handled by the Australian Privacy Commissioner.'

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New Bill introduced to amend FOI and privacy laws

2 October 2014

The Freedom of Information Amendment (New Arrangements) Bill 2014 (the Bill) was introduced into the Australian Parliament on 2 October 2014.

The Bill proposes the:

Below is some information that sets out:

  • what happens to FOI and privacy matters if the Bill is passed
  • how FOI and privacy matters will be dealt with until the new law commences on 1 January 2015.

What happens if the Bill is passed by the Parliament?

If the Bill is passed by Parliament, from 1 January 2015:

  • the functions of the Privacy Act will be undertaken by the Australian Privacy Commissioner. This includes the handling of privacy complaints, undertaking investigations and other regulatory activities, and the provision of guidance and advice on privacy to individuals, organisations and agencies
  • relevant functions of the FOI Act will be undertaken by the Attorney‑General’s Department (AGD) (advice, guidelines, annual reporting), the Administrative Appeals Tribunal (AAT) (merits review) and the Commonwealth Ombudsman (Ombudsman) (complaints). For more information, see the Bill.

How FOI and privacy matters will be dealt with between now and 31 December 2014?

Information Commissioner reviews still open at 31 December 2014

Applications for an Information Commissioner review (IC review) will continue to be received by the OAIC until 31 December 2014. IC reviews open at 31 December 2014:

  • will be taken to be an application for review to the AAT and will be transferred to the AAT
  • all records and documents associated with the IC Review will be transferred to the AAT
  • no application fees will apply to IC reviews transferred to the AAT.

Review by the AAT of IC review decisions made prior to 31 December

The AAT will continue to receive applications for review of IC review decisions made by the OAIC prior to 31 December 2014. Standard application fees may apply.

FOI complaints

From 1 November 2014, the Commonwealth Ombudsman will handle complaints about the processing of freedom of information requests. Any complaints received by the OAIC after this date will be referred to the Commonwealth Ombudsman.

FOI complaints made to the OAIC that have not been finalised by 31 December 2014 will be transferred to the Ombudsman. 

Privacy

It is business as usual for privacy. These changes have no effect on those organisations and agencies subject to the Privacy Act. The OAIC will continue to exercise all its privacy functions (including complaint handling) until 31 December 2014. After that date, privacy matters will be handled by the Australian Privacy Commissioner.

More information

We will update this advice as further information becomes available. 

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How the OAIC will deal with IC reviews and FOI complaints until 31 December 2014

16 July 2014

The Australian Government announced as part of the 2014–15 Budget that the Office of the Australian Information Commissioner (OAIC) will be disbanded from 31 December 2014.

The OAIC’s current functions will be split between four agencies. These changes will require legislative amendment to be passed by Parliament.

The changes announced by Government mean that from 1 January 2015:

  • the Privacy Act 1988 will continue to be administered by the Privacy Commissioner and supporting staff from a new office based in Sydney
  • freedom of information (FOI) policy advice, guidance and annual statistics will be administered by the Attorney-General’s Department
  • the right to external merits review of FOI decisions by government agencies and Ministers will lie directly to the Administrative Appeals Tribunal (AAT)
  • complaints about FOI administration by government agencies will lie directly to the Commonwealth Ombudsman
  • unresolved FOI review applications and complaints before the OAIC will be transferred to the AAT and the Commonwealth Ombudsman.

What does this mean for my Information Commissioner review?

At this stage, Information Commissioner reviews (IC reviews) can still be lodged with the OAIC. There is no right to apply directly to the AAT. The OAIC will attempt to finalise all reviews quickly.

The Freedom of Information Act 1982 (FOI Act) allows the Information Commissioner to finalise an IC review under section 54W(b) of the Act, by deciding that it is desirable in the interests of the administration of the FOI Act that the matter be reviewed instead by the AAT. In that event, the applicant can apply to the AAT, in accordance with normal AAT procedures. 

The OAIC may contact you to either suggest or recommend that your IC review application be finalised under section 54W(b). We will do this if we do not think that we can complete your review before 31 December 2014, or if the nature, complexity and progress of your application mean that it is desirable that it be finalised under section 54W(b).

If an IC review is finalised under section 54W(b), an applicant has 28 days to lodge an application for review with the AAT. AAT application fees may apply. A summary of AAT fees is available on the Information about application fees page of the AAT website.

If you don’t want your IC review finalised under section 54W(b), the OAIC will:

  • conduct an early assessment of your review
  • aim to resolve your review informally. For example, we may provide you and the agency with our preliminary view on your review.

While the OAIC will endeavour to finalise all IC reviews lodged with us as quickly as possible, it is likely that some reviews will not be finalised before 31 December 2014, and will be transferred to the AAT for completion.

Freedom of information complaints

The OAIC will endeavour to finalise FOI complaints currently before us by 31 December 2014.

When a new complaint is received we will contact you to discuss the matter and whether we can action it or finalise it before 31 December 2014. Unresolved complaints will be transferred to the Commonwealth Ombudsman for completion.

Complaints about FOI administration by government agencies can currently be made to the Commonwealth Ombudsman under the Ombudsman’s existing jurisdiction (but may be transferred to the OAIC).

We will update this advice as further information becomes available.

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Australian Government’s Budget decision to disband OAIC

13 May 2014

Statement by the Australian Information Commissioner (John McMillan), Freedom of Information Commissioner (James Popple) and Privacy Commissioner (Timothy Pilgrim).

We acknowledge the Australian Government’s Budget decision on Tuesday 13 May 2014 to disband the Office of the Australian Information Commissioner (OAIC) by 1 January 2015.

We note that the Freedom of Information Act 1982 (FOI Act) and the Privacy Act 1988 (Privacy Act), which confer valuable information rights on the Australian community, will continue to operate (as amended to reflect the abolition of the OAIC). The Privacy Act will continue to be administered by the Privacy Commissioner and supporting staff from an office based in Sydney. The FOI Act will be administered jointly: by the Attorney‑General’s Department (advice, guidelines, annual reporting), the Administrative Appeals Tribunal (merits review) and the Commonwealth Ombudsman (complaints). The information policy advice function currently discharged by the OAIC will cease.

We are committed to ensuring that the FOI Act and Privacy Act continue to operate effectively prior to 1 January 2015 and that a smooth transition to the new arrangements will occur.

The Commissioners take this opportunity to draw attention to the substantial achievements of the OAIC since its commencement on 1 November 2010.

Information Policy

  • Published the Principles on open public sector information (2011) (Open PSI Principles) that are widely referred to across government
  • Published two reports that promote Open PSI and the development of a national information policy — Towards a national information policy (2010), and Understanding the value of public sector information in Australia (2011)
  • Conducted a survey and published two reports of the information management practices of 191 Australian Government agencies regarding their compliance with the FOI Act Information Publication Scheme and the OAIC’s Open PSI Principles — Information publication scheme: survey of Australian Government agencies (2012), and Open public sector information: from principles to practice (2013)
  • Promoted key information policy concepts that now have a defining influence in government agency information practices, including that government information is a national asset to be used for public purposes, and concepts of ‘public sector information’, ‘open data’ and ‘proactive disclosure’
  • Hosted a National Information Policy Conference (2011) attended by over 300 people
  • Liaised with other government agencies to build a strong inter‑agency network for coordinating information policy developments

Freedom of Information

  • Resolved 1191 applications for Information Commissioner review (between 1 November 2010 and 30 April 2014), publishing reasons for decision in 186 of those cases
  • Closed 394 FOI complaints
  • Dealt with 1237 applications for an extension of FOI processing time for complex and voluminous FOI requests
  • Dealt with 4521 phone enquiries and 1891 written enquiries about FOI
  • Conducted an own motion investigation into administration of sensitive and high profile FOI requests to the Department of Immigration and Citizenship
  • Published clear and comprehensive FOI guidelines (250 pages), 16 Fact Sheets for the public, and over 30 detailed agency guides on processing times, calculating charges, administrative access, third party objections, anonymous requests, statements of reasons, redaction, FOI training, website publication, disclosure logs, sample letters and frequently asked questions
  • Conducted a public consultation on FOI charges and prepared a lengthy report to Government (2012)
  • Made two substantial submissions to the review of the FOI Act by Dr Allan Hawke AC in 2013 (many of the OAIC’s reform proposals were endorsed by the Review)
  • Promoted the ideals of transparency, accountability, participation and better decision–making that underlie the FOI Act

Privacy

  • Closed 5303 privacy complaints
  • Dealt with 34,739 phone enquiries and 5845 written enquiries about privacy
  • Conducted 91 own motion investigations and 10 audits
  • Received 193 data breach notifications
  • Implemented substantial changes to the Privacy Act that commenced on 12 March 2014, by undertaking or commencing preparation of nearly fifty legislative instruments, codes (including a comprehensive Credit Code), guideline statements and information sheets, and conducting an extensive public consultation process (receiving more than 90 public submissions on draft guidelines)
  • Published guidance on emerging privacy issues, including Data Breach Notification Guidelines (2012), a Guide to Information Security (2013) and Mobile privacy: a better practice guide for mobile app developers (2013)
  • Conducted and published a Community Attitudes to Privacy survey (2013)
  • Annually hosted Privacy Awareness Week, and arranged participation by government agencies and private sector bodies (over 200 in 2014)
  • Administered the Asia Pacific Privacy Authorities Forum, that includes members from the United States, Mexico, Hong Kong, South Korea, Canada and New Zealand
  • Participated in global forums that aim to build a coordinated approach to regulating cross‑border data flows and challenges, including the Global Privacy Enforcement Network under the auspices of the OECD, and the APEC Cross Border Privacy Enforcement Arrangement

Corporate, public relations and community engagement

  • Established an integrated office and scheme for managing freedom of information, privacy and information policy advice
  • Hosted regular meetings of the Information Contact Officers Network for agency FOI and privacy officers, attended by approximately 130 agency staff
  • Convened the Information Advisory Committee and the Privacy Advisory Committee, that comprise senior government officers and external representatives with experience in archives, libraries, journalism, banking, medicine, trade unions, copyright law, information technology, disability access and community services
  • Managed a dynamic website that receives up to 1.5 million visits annually
  • Provided policy advice to agencies or organisations on 715 occasions, made 113 submissions to inquiries and undertook 100 consultations
  • Made more than 250 keynote speeches and presentations to public conferences and in-house agency and business seminars, on open government and privacy protection

OAIC resources and performance

  • The OAIC appropriation for 2013–14 is $10.6 million. At the end of March 2014 the OAIC had 63.3 Full‑Time Equivalent (FTE) staff in budget‑funded positions. An additional 15.82 FTE staff are funded under Memorandum of Understanding arrangements with other agencies to undertake specific privacy work such as work relating to the eHealth initiative
  • The OAIC’s workload has steadily increased in most areas over the last two years by between 10‑20%. Privacy complaints are set to increase by over 100% in 2013–14, written enquiries by 20% and website visits by 27%.
  • The OAIC completion rate has continued to improve — for example, by 31 March 2014 the completion rate for IC reviews had climbed to 4.7 cases per day (from 0.37 cases per day in the first 18 months), the FOI complaint closure rate to 1.1 per day (from 0.21 per day in the first 18 months) and the privacy complaint closure rate to 20.1 per day.

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