International Access to Information Day - ICON session

4 November 2020
Tags: Angelene Falk freedom of information freedom of information (FOI) open government access to information

Speech by Australian Information Commissioner and Privacy Commissioner Angelene Falk to the Information Contact Officers Network (ICON) 

Good morning and welcome to our first virtual Information Contact Officer Network (ICON) information 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 or Torres Strait Islander people present.

Thank you for joining us, some weeks later than we had initially anticipated. It is a time of challenges, including the challenge of technology working every time you need it.

In amongst the challenges we are all facing, the importance of the work you do as FOI officers is critical, including in the current pandemic.

Our original presentation was scheduled to coincide with International Access to Information Day, a day proclaimed by the United Nations General Assembly in October last year to be marked on the 28 September thereafter. The day recognises the role that access to information plays as a foundation for participatory representative democracies.

And of course, in 2020 we have all seen how proactive sharing of information by government can aid in a crisis, build community trust in government actions, and support us on our road to recovery. Through the provision of information we are enabled to participate in prevention, management and recovery. In fact the UNESCO’s theme for this first internationally declared day, reflects the critical role of access to information in “Saving Lives, Building Trust, Bringing Hope.”

Interestingly, the Edelman Trust Barometer’s May update revealed a marked shift in the landscape of trust since January. The Update based on surveys in 11 countries shows that amid the Covid-19 pandemic, government trust surged 11 points to an all-time high of 65%, making it the most trusted institution for the first time in the 20 year history of the study.

As the information access officers and decision makers for your agencies, your role is critical to building trust through transparency, the OAIC’s theme for International Access to Information Day 2020.

It is in this context that we are very pleased that you are with us today, to hear about some of the current and emerging issues we are seeing in the domestic FOI system.

I’ll be covering some of our recent international engagement, the impact of the pandemic, and some of the trends that have emerged.

I will also update you on the position paper on disclosure of public servants’ names and contact details.

International view and the pandemic

In your roles, you are called on to manage government-held information as a national resource.

And you are performing that role in unprecedented circumstances, in the midst of a global health crisis.

When the pandemic was declared, I joined with my interstate and international counterparts to emphasise the vital role that access to information plays in informing the community and building trust during a crisis.

In our joint statement we highlighted the need to:

  • Uphold the value of clear and transparent communications
  • document decisions and preserve records and
  • provide access to information throughout the COVID-19 pandemic.

In these situations, public authorities must make significant calls that affect public health, civil liberties and people’s prosperity.

Documentation promotes accountability during and after an emergency, and ensures government held information is managed as a national resource, assisting future leaders to learn from these actions.  

The impact on your work

Our joint statements noted that in some cases resources have been diverted as a result of the pandemic, impacting on timely provision of access to information.

As living with the COVID-19 pandemic becomes part of our everyday lives, it is vital that agencies recalibrate and reallocate resources that may have been diverted, to ensure responses to FOI requests are not delayed.

In our advice released at the start of the pandemic, we suggested a range of measures to assist, including encouraging use of self-service or administrative access schemes, and explaining the possible impact to applicants and seeking their agreement to an extension of time.

Where applicants did not agree to an extension of time, many agencies applied to the OAIC for an extension of time.

We have encouraged you to be as specific as possible about any factors which have made it challenging to meet the timeframe, such as the availability of subject matter experts, decision makers, or staff within business areas.

As the response to the pandemic shifts further to recovery, we expect the general recalibration of resources in agencies to take account of FOI requirements, and that the need for extensions of time will accordingly diminish.

The criticality of meeting statutory processing times is a matter we will return to this morning and is borne out by the agency statistical returns.

FOI statistics

An effective and efficient FOI system is fundamentally in the public interest.

Each year, we gather statistics from agencies and minister’s offices on how the system is operating, which are published in our annual report.

Last year 79% of all FOI requests were processed within the applicable statutory time period compared with 83% the previous financial year.

We understand that COVID has affected the ability of some Australian Government agencies to respond to FOI requests within the statutory timeframes. However, this trend is of concern and we will be monitoring it closely during the year.

One of the main ways to reduce pressure on the FOI system is through more proactive publication of government information.

Combined with administrative access schemes, this streamlines agency operations and makes more government information readily available to the community, which increases the transparency of public sector activities, facilitates public participation and promotes better informed decision-making.

We will continue to promote and monitor proactive publication and timely processing of FOI requests as an ongoing priority for the OAIC.

Information Commissioner reviews

Applications for Information Commissioner or IC review of FOI decisions continued to grow in 2019–20, increasing by 15%.

We implemented further process improvements and resolved more IC reviews during the reporting period than ever before – up by more than 25% on the previous year.

The trend over the past 5 years shows both a consistent increase in applications for IC review, and increases to the numbers of IC reviews resolved by the OAIC.

Since 2015-16, applications for IC review have increased by 109% (from 510 in 2015-16 to 1,066, in 2019-20).

The OAIC has also increased its resolution rate during that time with an 83% increase in the number of IC reviews closed between 2015–16 and 2019–20 (from 454 in 2015-16 to 829 in 2019-20).

However, the significant growth in IC review applications has contributed to the overall time taken to finalise applications, from 87% of IC reviews finalised within 12 months in 2015-16, to around 71% of IC reviews finalised within 12 months in 2019-20.

In other trends we continue to see a significant number of IC reviews that challenge the adequacy of an agency’s searches for documents within scope of an applicant’s request.

One reason for this is that there is a lack of sufficient reasoning in decisions to demonstrate to the applicant that all reasonable steps have been taken to find a document.

As I mentioned, we have issued additional resources to help agencies undertake the steps necessary to find documents, and to document these.

We will discuss the requirement to take ‘all reasonable steps’ to find documents within the scope of an FOI request later in this webinar.

Using these resources will help in preparing more detailed statements of reasons which increase transparency around these processes and build trust.

Disclosure log report

Last year we advised you that we were undertaking a review of agency disclosure logs, which provide the public with an important and cost-effective avenue for accessing government information.

At the same time, they assist agencies in reducing the resources needed to deal with multiple requests for the same information.

Our desktop review examined the disclosure logs of 38 government agencies to assess compliance and practices. The purpose of the review was to identify whether agencies and ministers are complying with their disclosure log obligations, and the extent to which they make documents available for download from their websites.

We will shortly publish the findings of the review. At the same time, we will publish for consultation an updated draft of Part 14 of the FOI Guidelines (Disclosure log). This updated version has been informed by the findings of the desktop review of agencies disclosure logs.

Generally, while it found that most agencies are largely compliant, it has identified a trend for agencies to require members of the public to contact them for access to disclosure log documents, instead of publishing them on a website.

Some agencies do not provide a clear description of the released documents. This makes it difficult for members of the public to identify what the documents contain and decide whether to request access.

This practice puts an unnecessary barrier between the public and government-held information.

It also increases work for the agency in responding to requests.

The review will make a number of recommendations for agencies and ministers to remove this barrier to sharing information and provide added transparency, clarity and consistency to the process.

In short, all documents released in response to FOI requests (subject to relevant exceptions) should be made available for download from the agency’s website unless it is not possible to do so.

I encourage you to read the report, which will be published on our website shortly, and to review your agency’s practice to ensure best practice compliance.

Public servants’ personal information

A paper we issued in August will also be of interest to ICON members.

Last year we sought views on the disclosure of public servants’ names and contact details in response to FOI requests, or when requests are being processed.

We received more than 50 submissions, including 34 from Australian Government agencies, nine from individuals and six from other regulators. We also received submissions from the CPSU and OpenAustralia Foundation.

Our position paper starts from the pro-disclosure position embedded in the FOI Act.

Accountability for the work public servants do is part of achieving the objects of the FOI Act to increase scrutiny, discussion, comment and review of the Government’s activities.

Public servants should expect to be subject to scrutiny. They also have a right to work in a safe environment.

In considering this issue, we sought to apply the requirements for transparency and accountability in government with agencies’ responsibility to reasonably ensure public servants are safe at work and safe from harm.

The position paper provides guidance for agencies on addressing these issues.

If an FOI applicant indicates that they seek access to the names and contact details of staff, agencies and ministers must make a decision about access based on the particular circumstances and context of the FOI request.

In general, it will only be appropriate to delete public servants’ names and contact details as irrelevant under section 22 of the FOI Act if the FOI applicant states, clearly and explicitly, that they do not require this information. Agencies may ask this question of applicants in an access request form.

Whether disclosure of names and contact information poses a risk to the health and safety of their staff, because of the work performed or other factors, agencies and ministers may consider whether the conditional exemption in section 47E(c) applies - substantial adverse effect on the management of personnel by the Commonwealth or an agency.

As with all exemptions, I want to stress that the circumstances in which disclosure of the names and contact details of public servants may be exempt under section 47E(c) need to be considered on a case-by-case basis, based on an objective assessment of all available evidence. The public interest test must also be weighed in the circumstances.

If the applicant appeals the decision to the OAIC, agencies bear the onus of satisfying that the exemption applies.

We will be updating the FOI Guidelines consistent with these views.

Agencies and members of the public will have the opportunity to provide comment on the draft guidelines before they are finalised.

I’d also like to thank agencies for their submissions on other proposed updates to the guidelines, including Part 9 – on internal review of decisions – which will be published shortly.

We also recently updated Part 10, in relation to monitoring compliance with IC review decisions.

Open Government Partnership-Third National Action Plan

I will also briefly update you on the progress of the Open Government Partnership.

This is a multilateral initiative that aims to secure concrete commitments from governments to promote transparency, accountability, public participation and digital innovation to strengthen governance.

Under this partnership, Australia is now finalising its Third National Action Plan, following consultation with the public and civil society. Following a further round of public engagement a final draft will be prepared for the Government’s approval. The final plan is due to be submitted to OGP Global by 31 December 2020.

One of the commitments is called ‘Open by Design’ (the public’s right to know), which is currently open for public comment (until 6 November).

This commitment will develop principles to support and guide a consistent approach to the proactive release of information held by government. It is very much aligned with the philosophy of International Access to Information Day.

Another commitment of particular relevance to you is ‘Best practice in dealing with freedom of information requests.’ This commitment involves a research project that identifies differences in the way Australian Government departments and agencies process FOI requests and respond to applicants. The project will aim to identify how to achieve consistent practice, by assisting applicants to obtain access to the information they are seeking within the framework of the Freedom of Information Act 1982.

Conclusion

I expect it will be a topic of discussion at the meeting of the Association of Information Access Commissioners as we discuss the performance of our information access systems across the country.

In conclusion, I would like to reiterate part of my joint statement with Information Commissioners and Ombudsmen in New Zealand and Australian states and territories to mark International Access to Information Day in September.

Pro-active release of government-held information underpins an effective response to the pandemic, bush fires and other emergencies. It is also crucial to instilling confidence in government plans for economic recovery.

As countries around the world manage the impacts of COVID-19 and other crises facing communities, access to information becomes even more essential.

We acknowledge the work you have been doing to uphold Australians’ information rights, in these challenging times.

Our work together continues to be vital to enhance access to information and through this, to promote transparency, accountability and representative democracy.

Thank you.