Right to Know Day 2019 ICON session

24 September 2019
Tags: freedom of information open government FOI access to information right to know

Speech by Australian Information Commissioner and Privacy Commissioner Angelene Falk to the Right to Know Day 2019 Information Contact Officer Network (ICON) information session in Canberra

[Note: This is an edited version of the address for publication]

Good morning. I would like to begin by acknowledging the Ngunnawal people as the traditional custodians of the land on which we meet today. I also pay my respects to Elders past, present and emerging and I extend that respect to any Aboriginal or Torres Strait Islander people present.

Thank you to everyone joining us here this morning at our second Information Contact Officer Network – or ICON – session for 2019.

This week in particular, there is a significance to us all coming together to talk about freedom of information.

This Saturday marks what is known as International Right to Know Day, a day that is celebrated internationally and recognises the community’s right to access government-held information.

Promoting and upholding information access rights is at the core of the work of the OAIC, and we will be joining our Australian and international colleagues in marking the day.

Overview

Today I am going to talk about our priorities for the year ahead, how we advance the cause of information access, and your role in that process. I am also going to talk about some of the trends we are seeing in our work, and community research that speaks to the importance the people of Australia place on information being available.

One way we promote information access is through our support for the proactive publication of government information.

In our recent Corporate Plan, we signalled a clear intent to focus on proactive disclosure in the year ahead, viewing it as a tool in enabling the scrutiny, review and discussion of government policies and activities that supports better informed decision making.

The OAIC’s vision is to increase trust and confidence in the protection of personal information and access to government-held information. Your role as FOI practitioners is of course central to this, and the OAIC acknowledges the importance of the role that you play.

I will talk more about proactive disclosure shortly, but we firmly believe that with the right structures in place, it can both meet the expectations of the community and assist you in your work. It is also consistent with the objectives of the Open Government Partnership and the associated National Action Plan.

It’s been an important year for the OAIC. On the privacy front, we received additional funding in the May Budget, including to strengthen online privacy protections. We are also working closely with the competition regulator, the ACCC, through its Digital Platforms Inquiry and the upcoming Consumer Data Right.

I think we will look back at this time as a critical period for charting the right course for Australia in protecting the privacy of the community, and confronting the profound technological changes that are impacting modern economies.

And it’s also a crucial phase in advancing the objectives of open government, by ensuring we meet the best possible standards of transparency and accountability in information access, while protecting personal information.

Access to information

As the independent regulator, our office plays a key role in this mission by delivering on the objectives of the FOI Act, supported by a range of powers and functions to uphold information rights.

Under the FOI Act, every person has a right to access a document of an agency or an official document of a minister, and to receive it unless the document is exempt.

We also champion these objectives through our work supporting open government and participatory democracy, as a member of the Open Government Forum delivering the National Action Plan, working with the National Data Commissioner, and supporting you as our FOI practitioners.

One key element in our democracy is our press.

Many of you may have received FOI requests from journalists– journalists being active users of FOI mechanisms.

One of the issues raised by journalists is the length of time it can take to process a request – and the impact that time may have on the relevance of information obtained.

As well as our role in reviewing FOI decisions, the OAIC also makes decisions on requests for an extension of time beyond the standard 30-day process.

For example, if the agency or minister believes the request requires more time because it is either complex or voluminous then they must provide reasons to support their application for an extension to the OAIC.

Of course, the FOI Act process also allows an applicant to seek internal review of an FOI decision to refuse access or seek review through our office, known as ‘Information Commissioner (or IC) review’.

Many journalists also seek IC review. In fact, almost 20 per cent (18%) of the 830 reviews we have open are from the media.

Making FOI processes more efficient at the agency level and in our own work is a key objective of the OAIC.

Through our early intervention procedures and other measures, we have seen improvement in our finalisation rates despite pressures on the system.

At a wider level, the system will become more efficient the more we can succeed in encouraging the proactive release of government-held information, and a greater understanding of the objectives of the FOI Act.

Right to Know Day

This is particularly relevant as we approach Right to Know Day on Saturday, an international event that celebrates citizens’ fundamental right to access government information.

In Australia, we are focusing on promoting greater recognition that information gathered by government is a national resource and subject to appropriate safeguards should generally be available to the public.

I note that Prime Minister Morrison spoke recently of the role of public servants in working for, and being ultimately responsible to, the community. From the OAIC’s perspective, making information available is essential to building trust in the community, and you play a vital part in achieving that goal.

The flow of information between government and the community can also stimulate innovation to the economic and social advantage of the nation.

The Productivity Commission among others has highlighted the potential of data sharing and innovation among government agencies, and there is currently a consultation process underway in regard to the proposed Data Sharing and Release legislation.

I am appointed to the National Data Advisory Council that is supporting the Office of the National Data Commissioner in developing arrangements to maintain public trust in data sharing initiatives.

Community attitudes research

Recently, the OAIC commissioned research to measure citizens’ awareness of the right to access government information, and their experiences and outcomes in exercising that right.

Among the key findings:

  • the overwhelming majority of those surveyed — 87% — are aware of their right to access government information
  • 84 per cent feel that right is important. This is consistent with our view of what the community expects in terms of transparency.

This is consistent with our view of what the community expects in terms of transparency.

Sources of government information

The research also shows that: 

  • more people are aware they have a right to access information from Australian Government agencies (83%) than ministers (36%)
  • more than a third of respondents (37%) have attempted to access government-held information
  • most people would access government information via the internet
  • 18 to 34-year-olds are significantly more likely to search for government information through an internet search, third-party website, social media or news sites
  • older respondents are more likely to contact their local MP or seek information from other sources such as friends and family • 83 per cent of people who tried to access information were successful
  • 9 per cent of those surveyed had to make a formal access application to get the information they sought
  • Another 15 per cent did not get all or any of the information they wanted

Other state and territory jurisdictions carried out their own access to information polls, and these comparative results will be published next week.

Information Publication Scheme

As I’ve mentioned, encouraging proactive publication is a key strategic priority for the OAIC.

A proactive push model for government-held information is embedded in the FOI Act, through the critical tools of the Information Publication Scheme (or IPS) and disclosure log provisions.

The IPS mandates that Australian Government agencies release identified categories of information to the public proactively and further, encourages agencies to proactively release other information to the public wherever possible. The scheme fosters greater openness and transparency in government.

Earlier this year we published the results of a follow up survey of Australian Government agencies’ compliance with their IPS obligations. This followed an initial survey in 2012, the year after the IPS was introduced.

The results show the IPS continues to be an important element in ensuring information held by Australian Government agencies is managed for public purposes and is treated as a national resource.

Agency responses confirmed a continued commitment to IPS requirements and principles, although a decline was observed in each of the four key areas of compliance measured by the survey in 2012 and 2018.

Larger agencies generally reported higher levels of compliance with IPS requirements and better practice principles, compared with micro to small agencies.

Compliance with the IPS is an ongoing statutory responsibility for agencies subject to the FOI Act. The survey’s results have assisted the OAIC to identify areas where improvements can be made to further promote the proactive publication of Australian Government information.

We need all agencies to bring more focus to the proactive publication of the information they hold on behalf of the community. To assist we will be updating our FOI Guidelines chapter on the IPS to take account of the way the community now accesses information online and other government policy initiatives such as its Open Government Partnership commitments.

We also invite agencies to get in touch with us about how we can help you implement the IPS.

Proactive disclosure

So how do we make proactive disclosure “the default”? This is not as challenging as it may initially appear. And we do believe, with the right processes in place, it can lighten your administrative load.

While there will always be requests for documents that are complex and cases that require consultation with affected third parties, many other requests will not fall into these categories.

I encourage you to look for the common threads in the requests you receive.

Is it something that is routinely requested, such as statistics or meeting minutes, and could it be published as part of your IPS?

Review the requests you receive for an individual’s own personal information. Can these be made available through established administrative access schemes or platforms, or - if you don’t have a formal process – can you set one up?

A combination of proactive disclosure of agency information and administrative access schemes will streamline operations and provide efficiencies for your agency, freeing you up to spend more time on matters that need detailed consideration.

Disclosure logs

In the spirit of open and transparent government, the FOI Act also requires Australian Government agencies (with some exceptions) and ministers to publish information released under FOI, through a disclosure log.

We issue guidelines which agencies and ministers must consider, and we monitor disclosure logs to ensure best practice. We can also investigate if an agency’s disclosure log complies with the FOI Act.

This year, we are taking a very close look at how disclosure logs are operating, and whether these obligations are being met.

More generally, we are continuing to explore ways in which the FOI Act should be applied to support the National Action Plan on Open Government and meet community expectations to ensure government held information is treated as a national resource.

We are also reviewing our guidance and other resources to assist with agency compliance and support better practice into the future.

Trends in FOI requests

So how does this align with Australian Government FOI statistics, which give us a snapshot of FOI activity across government?

Agencies’ 2018-19 figures will be tabled in our annual report next month, and in looking at the previous year’s figures we can identify some trends.

  • While the number of Commonwealth FOI requests received in 2017-18 went down by 13%, we have seen that decline turn around over the past 12 months with an increase of nearly 13%. This is mainly due to an increase in requests for personal information. For that reason, agencies are encouraged to look at what personal information is being routinely requested by individuals, and look for efficient ways to make it available.
  • More than 80 per cent of all FOI requests in 17-18 were for personal information, and this figure is continuing to stay around this level.
  • In terms of the outcomes of FOI requests, we have had a slight rise in the percentage of situations where information was granted in full, up 2% to 51.8% in 18-19 from the previous year. Those granted in part were at similar levels (around 34%) to the previous year.

In 2017-18 we saw an increase in the number of requests refused, from 10% to 16% but this has fallen to about 13% in 18/19. In 2017-18 we saw a big improvement in the proportion of FOI requests processed within the statutory timeframe, up from 58% to 85%.

The introduction of an administrative access scheme for personal information by the Department of Home Affairs was a key factor. Last financial year, we saw a small fall in this measure, and timeliness needs to continue to be pursued.

  • One constant across the two years is the proportion of all FOI requests that are made to the Departments of Home Affairs, Human Services and Veterans’ Affairs – representing almost 70 per cent of the total.
  • Just a small fraction of these are for non-personal information.

The personal privacy exemption in section 47F remains the most claimed exemption across both years (38% in 2018-19 compared to 43% in 2017-18).

Information Commissioner reviews

It has been another extremely busy year for our FOI team.

We saw a substantial increase in FOI enquiries and a 16% increase in IC review applications.

This is on top of the 27 per cent increase in IC review applications in 2017-18.

In fact, over the past four years the number of IC review applications has climbed by more than 80 per cent.

This is a significant trend.

We are continuing to increase the rate at which we finalise IC reviews, building on the greater efficiencies achieved in this area in 2017-18 when we finalised 610, and completing 2018-19 with 659 reviews finalised.

However, we acknowledge that this is not keeping pace with the continuing rise in incoming work.

Key principles

Our approach to reviewing a decision made by an agency or minister to refuse access to government documents is designed around four key principles: 

  • It is intended to be as informal as possible.
  • It is intended to be non-adversarial.
  • It is intended to be timely; and
  • It is a merit review process where I make the correct or preferable decision at the time I make my decision.

Our FOI Guidelines, Regulatory Action Policy and Procedure Direction outline our processes and provide guidance on how I exercise these functions.

Practical refusals

One of the strategies in place to address the increase in IC reviews is to process applications covering similar issues as a cohort, to provide additional guidance to agencies in handling FOI applications.

For example, we saw a significant increase in the use of the practical refusal provisions, which in turn was prompting more complaints and requests for review.

In June I released eight IC review decisions dealing with this issue together.

As you are aware, an agency may refuse to give access where it would substantially and unreasonably divert the resources of the agency from its other operations, known as a practical refusal reason.

A reoccurring issue was whether the agency took reasonable steps to assist an applicant.

Just as we urge agencies to be proactive in releasing information, they should also be proactive in consulting with applicants. There is a legislated obligation to assist applicants to review the scope of their request so that the practical refusal reason no longer exists.

Taking a narrow approach to this obligation is not in keeping with the objectives of the FOI Act and may lead to an IC review and/or FOI complaint.

FOI practitioners need to work with applicants and take steps to avoid a practical refusal where possible.

As we are emphasising in particular around Right to Know Day – managing information for public purposes, and providing access to citizens, is an opportunity to strengthen transparency and community trust.

Disclosure of public servants’ names and contact details

On another matter, as many of you are aware, we recently released a discussion paper about including public servants’ names and contact details in response to FOI requests or when requests are being processed.

The paper, published in July, sought to do two things:

  • One - to provide greater awareness of the relevant guidance and decisions regarding the disclosure of public servants’ names and contact details including the particular circumstances where such details may be exempt from disclosure
  • Two - It also sought to explore concerns and practices relating to this issue.

We called for comment from agencies, public servants and members of the community on these issues and last week we published these submissions on our website.

We received a number of submissions and I thank those who provided submissions for their engagement on the issue.

We are in the process of reviewing these submissions in the context of reviewing the FOI Guidelines, which as you are aware, are issued under s 93A of the FOI Act.  Agencies and ministers must have regard to these guidelines when performing a function or exercising a power under the FOI Act.

Your role as FOI practitioners

In conclusion, I’d like to thank you for giving us your time today.

Our FOI team is here to talk with you at the end of the session.

We are also available for advice on how to implement the IPS in your agency, and other strategies to help you champion the proactive publication and release of information within your agencies – to support the principles of open government, create greater efficiencies, and advance the interests of the Australian people.

As Right to Know Day acknowledges, your part in supporting a transparent and accountable system of government is essential – you are managing one of the nation’s most valuable assets on behalf of its citizens.

We appreciate the important work that you do every day.

Thank you.

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