ICON information session April 2021

22 April 2021
Tags: Angelene Falk freedom of information freedom of information (FOI) open government

Good morning and welcome to this virtual Information Contact Officer Network (ICON) session.

I would like to begin by acknowledging the traditional custodians of the lands on which we meet virtually today throughout the country. I also pay my respects to Elders past, present and emerging and I extend that respect to Aboriginal and Torres Strait Islander people present.

Introduction

Today I will speak primarily about complaints and investigations under Part VIIB of the FOI Act. I want to touch on the issues we see commonly raised as complaints, as well as findings and recommendations made in recent investigations.

This is important as complaints provide the OAIC with intelligence on agency FOI processing that may not necessarily come to our attention through the agency statistics or through IC review applications. They enable us to identify issues, challenges and areas for improvement and agency development.

Equally, complaints provide agencies with intelligence, and the chance to see each complaint as an opportunity for feedback, critical assessment and better practice.

And complaints are increasing to the OAIC, up 79% this financial year. So in order to drive better practice and increase transparency, we are publishing outcomes and recommendations from FOI complaint investigations on the OAIC website.

Today I want to urge you as FOI practitioners to consider these recommendations in light of FOI practices within your own agency. In this way you can ensure you are meeting obligations under the Act and that you take steps to continually improve FOI processes.

To that end, I’m spending time today to take you through the issues we are seeing, and the solutions we pose, so that you can get on the front foot, learn from other agencies and ensure you are best practice in processing FOI.

I think it’s useful at this point to step back and look at the big picture to help frame our discussion.

The big picture

The objects of the Freedom of Information Act 1982 are to give the Australian community access to information held by the Government.  It does this in two ways: by requiring agencies to publish information and providing a right of access to documents. 

This is intended to promote representative democracy by contributing towards increasing public participation in Government processes. This, in turn, is intended to promote better-informed decision-making and increase scrutiny, discussion, comment and review of the Government’s activities.

Consistent with this, public access to information should be available promptly and at the lowest reasonable cost. 

Timely provision of public access to government information, whether through the Information Publication Scheme, disclosure log or provision of documents to an applicant, is a central enabler to fulfil the objects of the FOI Act. And one that the OAIC is critically focused on.

Another key big picture point to note - FOI is a whole-of-agency responsibility, requiring the support of senior staff to ensure policies and procedures are adequate and operationalised. Without that collective responsibility and senior support, it will be challenging to hit the timeliness mark.

This shared responsibility was recently emphasised in our Commissioner-initiated investigation, or CII, into the processing of FOI requests for non-personal information by the Department of Home Affairs.  It is also central to the recommendations I have made to other agencies in recent complaint investigations, to issue statements to staff across their agency highlighting the importance of FOI.

Agencies, as much as possible, should adopt a holistic approach to shape their FOI operations.

Our role is to try and work with agencies to ensure the FOI system is functioning effectively.

That means dealing with complaints, carrying out IC reviews, and in some cases, carrying out investigations with the goal of systemic improvement.

But we also provide guidance that will help you in your roles and to perform your obligations under the Act. We aim to be constructive and co-operative to help find solutions, including utilising regulatory action as a means to meet the goal of systemic improvement.

Complaints

The most complained-about issue is delays by agencies processing FOI requests and their compliance with statutory decision-making timeframes.

Other complaints relate to:

  • Not acknowledging a request within 14 days
  • The consultation process
  • General communication with an FOI applicant
  • Interpretation of scope.

There are a number of other issues raised, including:

  • Perceived poor customer services
  • Poor communications, and
  • The extension of processing time to consult with third parties when it may not appear necessary.

Once we have completed an investigation, we publish a summary on the OAIC website which outlines the issues raised in the complaint, as well as my findings, and whether I have also made any recommendations for implementation or suggestions.

This summary table does not identify the complainant - only the agency.

This summary is a useful tool for all agencies to proactively consider, whether any of your agency’s processes could also benefit from implementing the recommendations.

Number of complaints

Last financial year the OAIC received 110 FOI complaints about agencies, up 79% from 61 in 2018-19.  The number of complaints we had on hand at 1 March this year was 117.

Under part VIIB of the FOI Act, I can investigate an action taken by an agency in the performance of its functions or the exercise of its powers under the Act.

The Information Commissioner cannot investigate a minister’s handling of FOI matters.

Our general position is that making a complaint is not an appropriate mechanism where an IC review is available.

An IC review will ordinarily be the more appropriate avenue for a person to seek review of an FOI decision, particularly an access refusal or access grant decision.

Where the matter is best dealt with as a complaint, or where the issues appear to be systemic in nature, it is also open to me to deal with the issues in both a merits review but also under the broader complaints function.

And I also have the discretion to undertake CIIs.

When carrying out an investigation into an agency, we will also look at it through a wider lens.

Systemic failures

That wider lens can reveal systemic failures. A systemic failure by any agency to comply with the requirements of the Act puts at risk the achievement of the objects of the FOI Act.

In addition, systemic failures by one agency which are observed by other agencies may have a negative impact on their future compliance.

Resolving the operational challenges in dealing with FOI processing can be challenging, as many of you will know. That is why an integrated, co-operative approach works best.

One significant benefit of considering issues proactively is that it may also reduce the number of complaints received by an agency and potentially have an impact on the number of matters proceeding to external review.

A number of issues discussed in our recently-completed CII into Home Affairs will have wider interest for FOI practitioners. Again, the whole of agency approach is crucial, particularly when dealing with operational issues.

Some of the internal issues that hampered FOI processing in that situation included:

  • inadequate policies for addressing the escalation and finalisation of decisions including timely consultation processes
  • inadequate training of non-FOI staff who may be required to consult on specific FOI requests.

The CII found that a greater degree of senior-level support for embedding policies, procedures and systems for compliance would assist Home Affairs in meeting statutory processing periods under the FOI Act.

The OAIC has recommended Home Affairs:

  1. appoint an “Information Champion” to promote and operationalise its compliance with the FOI Act
  2. prepare and implement an operational manual for processing requests for non-personal information, and make it available on its website
  3. provide additional FOI training to staff
  4. audit the implementation and operationalisation of the recommendations and provide a copy of the audit report to the OAIC.

Home Affairs has accepted the recommendations and indicated it will implement them in full.

Other regulatory action

As I said, exceeding timeframes has been the main issue for complaints. So where to next?

In relation to monitoring agency compliance with statutory timeframes under the FOI Act, we intend to contact agencies which are consistently not complying with statutory timeframes.

As I have been doing today, the OAIC intends to highlight recommendations made in recent investigations and will be asking agencies to consider the following issues to assist with improving their timeliness with statutory processing timeframes:

  • the appointment of an information champion or a governance board
  • the development of an operational manual for processing FOI requests
  • specific training provided to staff undertaking functions under the FOI Act.

The OAIC will consider agencies’ responses to inform its broader Commissioner-initiated investigations function.

These practices can be put in place by any agency, and I’d encourage you to consider doing so proactively, without waiting for a letter from the OAIC.

Setting in place the right framework

When making recommendations and suggestions we draw upon the obligations under the Act and consider best practice.

As well as recommending increased staff training and the appointment of Information Champions, I have also made a number of other recommendations to agencies help them develop the right processes. These include to:

  • issue statements – by the CEO or Secretary – to all staff highlighting the agency’s obligations under the FOI Act
  • conduct audits on its processes
  • update its policies and procedures in relation to FOI processing consistent with the findings of specific investigations
  • take remedial action including contacting FOI applicants where I found that review rights had not been included in the response to FOI requests.

These are both proactive and corrective. Ultimately, the goal is that complaints are reduced, and where they are made, they are handled well by agencies up front.

The Commonwealth Ombudsman in his Better Practice Complaint Handling Guide reminds us that:

A user friendly and efficient complaint handling system doesn't just resolve problems for individuals. A well-handled complaint can help restore complainant satisfaction and confidence in public administration. Complaints also provide a wealth of data that can be interrogated to identify program weakness, systemic administration issues and opportunities to improve business practices. 

Resolving complaints well can also reduce the need for the OAIC to investigate or continue investigating. I have a discretion not to investigate where the complainant has complained to the agency and the agency has dealt with it or is dealing adequately with the complaint.

Resources available

I commend you to make use of the resources available on the OAIC website. We want you to succeed.

These include fact sheets for FOI practitioners to make available to agency staff, a checklist for taking all reasonable steps to find documents, and an overview of the Information Publication Scheme.

The latter is a major plank in reducing the pressure FOI system –being more proactive in the publication of government information.

Combined with administrative access schemes, this streamlines agency operations and makes more government information readily available to the community.

This increases the transparency of public sector activities, facilitates public participation and promotes better informed decision-making.

Importantly, access is facilitated promptly and at the lowest reasonable cost.

Thank you.