Volume 1
Briefs
28 and 29 August 2023
1
Key statistics
D2023/018596
2
OAIC APS Census Results
D2023/018595
3
Staffing Figures
D2023/018594
4
Legal Matters
D2023/018599
5
Budget summary
D2023/018597
6
FOI IC review table -numbers, finalisation times, outcomes
D2023/018528
7
Agency FOI statistics
D2023/018529
8
FOI Complaints
D2023/018531
9
Department of Home Affairs – Compliance with Processing
D2023/018532
9A Appendix A - Letter - Commissioner Falk from AS Biddle - 21 June 2023
D2023/019933
Appendix E - Compliance with Processing Time frames: Letter to Commissioner Falk
9B from AS Biddle (21 June 2023)
D2023/019935
Appendix E: Compliance with processing Time frames: Response to Information
9C Commissioner letter Quarter 4 stats included (4 August 2023)
D2023/019953
Appendix C: Letter to Secretary Pezzulo AO: Department’s non-compliance with
statutory timeframes for processing FOI requests and the impact of this non-
9D compliance on the IC review process.
D2022/019475
10 FOI Change of government and official ministerial documents of a Minister
D2023/018534
11 FOI OAIC Monitoring, guidance, engagement and IPS guidelines
D2023/018535
12 FOI Extension of time applications
D2023/018536
13 National Cabinet
D2023/018537
14 Deemed Decisions
D2023/018751
15 IC Review Procedure Direction
D2023/019805
16 Information Laws Across States and Territories
D2023/019468
17 FOI Act Reports
D2023/018988
18 Proposed amendments to FOI Act – contact with AGD
D2023/020079
19 Proposed legislative amendments as at August 2023
D2023/020067
20 OAIC Governance Structure
D2023/019853
Folder Updated: 12 September
2023
21 SES Staff Caps
D2023/020173
22 Corporate
D2023/018598
Folder Updated: 12 September
2023
Inquiry into the operation of Commonwealth
FOI laws
Volume 1 – Briefs
Folder Updated: 12 September
2023
link to page 4 link to page 4
FOI HEARING BRIEF Number-1
Key statistics
1.
2022–23 data include financial year to date figures as at
30 June 2023.
2.
Percentages may not add to 100% due to rounding.
3.
Some historical data has changed based on updated information.
4.
Data current as of 1 August 2023.
IC Reviews
2017–18 2018–19 2019–20 2020–21 2021–22 2022–23
IC reviews ongoing at
period close
582
851
1,089
1,297
1,876
2,004
Ave age of IC reviews
ongoing at period close
6.3
9.1
11.6
14.5
15.1
18.9
(months)
IC reviews received
802
928
1,067
1,225
1,955 1 1,647
% change from PY
27%
16%
15%
15%
60%
-16%
IC reviews closed
610
659
829
1,017
1,376 2 1,519
% change from PY
18%
8%
26%
23%
35%
10%
Average months to close
6.7
7.8
8.1
8.3
6.4
9.8
IC reviews closed within 12 months – target 80%
2017–18 2018–19 2019–20 2020–21 2021–22 2022–23
% closed within 12 months
84%
73%
71%
73%
83%
78%
No. closed within 12 months
513
482
592
740
1,144
1,180
% closed
over 12 months
16%
27%
29%
27%
17%
22%
No. closed over 12 months
97
177
237
277
232
339
Age of IC reviews ongoing at period close
2018–19
2019–20
2020–21
2021–22
2022–23
No.
%
No.
%
No.
%
No.
%
No.
%
≤ 6 months
296
35%
378
35%
350
27%
651
35%
459
23%
6–12 months
305
36%
252
23%
281
22%
306
16%
329
16%
12–24 months
234
27%
341
31%
405
31%
420
22%
561
28%
24–36 months
16
2%
112
10%
200
15%
328
17%
342
17%
36–48 months
0
0%
6
1%
57
4%
153
8%
227
11%
> 48 months
0
0%
0
0%
4
0%
18
1%
86
4%
Total
851 100% 1,089 100% 1,297 100% 1,876 100% 2,004 100%
1 A transcription error resulted in
39 IC reviews incorrectly reported as received in 2021-22. There were 1,955 IC reviews received
(1,995 in the published annual report).
2 A technical fault resulted in
15 IC Reviews being incorrectly reported as closed in 2021-22. In addition,
one IC review previously
reported as closed was reopened after the annual report publication (1,392 in the published annual report).
1
Number over 12 months old (as at 31 March) :
1,156 Number over 12 months old (as at 22 May):
1,208
Number that we advised the Committee were over 12 months old at last Estimates –
1,055
Number over 12 months old (as at 30 June):
1,216
IC reviews on hand at 30 June 2023, by year received
No on
On hand On hand On hand
hand at
at last at 22 May
at 30
Issue
31 March
% Estimates
June
2018
39
2%
47
34
27
2019
202
10%
238
172
155
2020
316
15%
329
310
285
2021
461
23%
464
451
437
2022
747
37%
808
702
641
2023
279
14%
124
391
459
Total
2,044
100%
2,010
2,060
2,004
Oldest ongoing IC review – date received:
23-Mar-18
IC reviews closed 2022-23 requiring IC decision under s55K
Closed FYTD Percentage
IC Decision under s55k
68
4%
Other
1,451
96%
Total
1,519
100%
Deemed decisions received
2017–18 2018–19 2019–20 2020–21 2021–22 2022–23
Deemed decisions received
21
57
349
465
1,107
854
% change from PY
N/A
171%
512%
33%
138%
-23%
Deemed decisions received
(DHA)
6
16
170
315
885
594
% change from PY
N/A
167%
963%
85%
181%
-33%
2
FOI Complaints
2017–18 2018–19 2019–20 2020–21 2021–22 2022–23
Complaints ongoing at
period close
52
91
130
108
101
189
Ave age of investigations
ongoing at period close
5.0
11.0
12.3
18.0
9.9
11.6
(months)
Complaints received
62
61
110
152
216
212
% change from PY
72%
-2%
80%
38%
42%
-2%
Complaints closed
29
22
71
174
223
124
% change from PY
61%
-24%
223%
145%
28%
-44%
Average months to close
5.9
7.2
11.6
6.8
10.5
4.1
FOI complaints closed within 12 months – target 80%
2017–18 2018–19 2019–20 2020–21 2021–22 2022–23
% closed within 12 months
83%
82%
52%
82%
74%
94%
No. closed within 12 months
24
18
37
142
164
116
% closed
over 12 months
17%
18%
48%
18%
26%
6%
No. closed over 12 months
5
4
34
32
59
8
Age of FOI complaints ongoing at period close
2018–19
2019–20
2020–21
2021–22
2022–23
No.
%
No.
%
No.
%
No.
%
No.
%
≤ 4 months
12
13%
20
15%
26
24%
39
39%
63
33%
4–6 months
8
9%
19
15%
4
4%
5
5%
14
7%
6–9 months
17
19%
22
17%
5
5%
17
17%
13
7%
9–12 months
18
20%
17
13%
4
4%
13
13%
25
13%
> 12 months
36
40%
52
40%
69
64%
27
27%
74
39%
Total
91
100%
130
100%
108
100%
101
100%
189
100%
Oldest ongoing FOI complaint – date received:
19-Feb-19
Top 3 agencies within highest volume of FOI complaints ongoing at 30 June 2023
Complaints
ongoing at
30-Jun-22
DHA
35
DVA
23
DHS
19
Total
77
• DHA: processing delays and lack of assistance to applicants
3
link to page 7 link to page 7 link to page 7 link to page 7 link to page 7
• DVA: varied, but primarily processing delays and failure to acknowledge FOI requests.
• DHS: processing delays, and failure to apply decision makers signature to decision
FOI vexatious applicant declarations
FOI vexatious applicant declarations s89k & s89M
2017–18 2018–19 2019–20 2020–21 2021–22 2022–23
Ongoing at period close
3
1
4
2
5
1
Received
11
16
4
3
9
3
2
Closed
10
18
1
5
6
6
FOI Extension of time notifications and requests
2017–18
2018–19
2019–20
2020–21
2021–22
2022–23
EOT requests requiring OAIC decision4
Requests ongoing at period
close
8
15
5
26
20
33
Ave age requests ongoing at
1
4
1
2
2
4
period close (business days)
Requests received
532
785
1,353
992
1,550
1,678
% change from PY
-9%
48%
72%
-27%
56%
8%
Requests closed
531
778
1,363
971
1,556
1,665
% change from PY
-11%
47%
75%
-29%
60%
7%
Average business days to
3
3
4
4
4
8
close
Other EOTs where agreement reached or IC review to be conducted
Notifications received5
2,797
2,956
2,800
2,595
3,207
4,683
% change from PY
-26%
6%
-5%
-7%
24%
46%
EOTs for IC review or
internal review received6
38
43
91
122
169
109
% change from PY
90%
13%
112%
34%
39%
-36%
Requests closed by type4
2017–18 2018–19 2019–20 2020–21 2021–22 2022–23
Requests closed
531
778
1,363
971
1,556
1,350
s15AB - complex or voluminous
370
562
786
507
890
1,182
s15AC – deemed refusal
122
178
492
405
556
385
s54D – deemed affirmation
38
37
80
57
106
96
s51DA-amendment - deemed refusal
1
1
5
2
4
2
3 8 published in the annual report
4 ss 15AB, 15AC, 54D, 51DA
5 s 15AA
6 ss 54B and 54T. Only one request has been received for s54B extension of time in 2018-19 financial year.
4
% change from PY
-11%
47%
75%
-29%
60%
7%
s15AB - complex or voluminous
-18%
52%
40%
-35%
76%
33%
s15AC – deemed refusal
9%
46%
176%
-18%
37%
-31%
s54D – deemed affirmation
31%
-3%
116%
-29%
86%
-9%
s51DA-amendment - deemed refusal
N/A
0%
400%
-60%
100%
-50%
Average business days to close
3
3
4
4
4
8
s15AB - complex or voluminous
3
3
4
4
5
9
s15AC – deemed refusal
3
3
5
3
4
6
s54D – deemed affirmation
2
3
4
3
4
7
s51DA-amendment - deemed refusal
0
2
4
4
4
7
FOI Requests
Total number of FOI requests received by the OAIC
2017–18 2018–19 2019–20 2020–21 2021–22 2022–23
Requests received
95
252
235
193
335
334
Personal
39
154
144
121
183
188
Other
56
98
91
72
152
146
Internal Review
2
21
13
17
25
56
Personal
10
7
12
14
26
Other
2
11
6
5
11
30
Total
97
273
248
210
360
390
Version: 1
Cleared by: Annamie Hale
Action officer: Lisa Linehan
Current at: 1/08/2023
Phone number: 02 9942 4097
Action officer number: (02) 9297 9305
5
Related HTB: NIL
FOI HEARING BRIEF: Number 2
OAIC's APS Census Results
Key Points
• As a result of the changes implemented via the 2022 Census Roadmap
(Attachment A)
the OAIC’s 2023 Census results reflect improvements across all key Indexes compared
to 2022 results:
o Employee Engagement (+4pp)
o Communication (+2pp)
o SES Manager Leadership (+7pp)
o Immediate Supervisor (+6pp)
o Enabling Innovation (+5pp)
o Wellbeing Policies and Support (+4pp)
• The APS Employee Census results provide an opportunity to reflect on the way we work
and to make changes.
• We are committed to maintaining a highly engaged, skil ed and professional workforce.
We are also committed to acting upon the feedback we have received from our people.
This has been reflected in the implementation of the OAIC 2022 Census Roadmap.
• The Information Commissioner has tasked the Senior Assistant Commissioner with
leading the OAIC’s response to the 2023 results, in partnership with Assistant
Commissioners and People and Culture. This replicates the successful approach taken
in 2022.
Areas of strength
• In 2023 the OAIC has:
o improved against each of the Indexes and now sits
above the APS overall result
in relation to each Index. In 2022 we sat below the APS overall result in five of the
six Indexes.
o performed
above the small agency overall results in relation to each Index
o considerably improved each of our overal Index positions. For example, the
Immediate Supervisor Index position has moved up 54 places from 82nd in 2022
to 28th in 2023.
• The 2023 Census results also reflect that OAIC staff are planning to stay with the agency
for longer – with a 13pp drop in the in the number of people wanting leave as soon as
possible or within the next 12 months. This is consistent with the OAIC reducing its
attrition rate from 35% in 2022 to 15% in 2023. This can be partly attributed to the
OAIC’s increased focus on supporting staff via a better resourced People and Culture
team.
• The most significant changes have been found in the FOI Branch and Corporate
Branches. In FOI there was a 33pp drop in the number of people wanting leave as soon
as possible or within the next 12 months and 33pp increase in the number of people
wanting to stay working in their position for at least the next 3 years.
• The Corporate Branch also saw a significant change where there was a 36pp drop in the
number of people wanting leave as soon as possible or within the next 12 months and a
41pp increase in the number of people wanting to stay working in their position for the
next one to two years.
Areas for further work
• Ipsos Australia (partnering with the APS Census team) presented an analysis of the
OAIC’s results to the Commissioners, Senior Executive Service, People and Culture and
the OAIC’s Business, Reporting and Data Analytics section on Thursday, 17 August.
Ipsos identified the opportunities for further improvement to enhance optimal
performance include:
o having fewer competing priorities
o improved technology
o streamlined administrative processes
o fewer layers of decision making, and
o increasing a reasonable tolerance for risk.
• Public release of APS agency-wide results will occur in November 2023.
• The OAIC’s results have been circulated to staff.
• In 2022 the OAIC scores in employee engagement and innovation were marginally
lower than comparator agencies. OAIC’s results indicated that there were ongoing
challenges around workload and decision-making (which had been reflected in
previous years’ results). This continues to be a theme in 2023.
2
Census Roadmap
• To ensure the OAIC benefited from the opportunities presented our 2022 Census
results we began a program of work to embed changes via a Census Roadmap
(attached) which set out:
o what our people told us we can improve
o how we planned to do that and
o a timeframe for completion.
The Census Roadmap includes 22 individual commitments.
Three core focus themes:
• Strengthening leadership and management capability and Learning and
Development opportunities
• Promoting staff wellbeing and a safe and healthy working environment
• Promoting, supporting and encouraging staff mobility, connectiveness and
innovation.
Progress against Census roadmap
• ICT Q&A events have been regularly run and well attended - allowing all staff to
share ICT difficulties and facilitate solutions. This will continue quarterly
• Creation of s47E(d)
email inbox to enable staff to share innovation and
plans to run an OAIC Wicked Problems program in September 2023
• Developed internal mobility guidance and broadcast internal opportunities and
movements via weekly staff newsletter
• ARRIVAL, STAY and EXIT surveys have been implemented and a review of our
Induction and off-boarding program is being progressed
• Social Committee has been re-enlivened & Social Teams chats created
3
• Learning and Development platform (LearnHub) released in December 2022 and is
used to deliver mandatory training and coordinate easy to access training
invitations
• Engaged with our people who live outside Sydney to discuss what support they
need to thrive at the OAIC and then established the Better Together Committee to
help embed our OneOAIC culture
• Arranged for external training experts to deliver seminars to support people in
effectively communicating their own capacity and managing workload
expectations
• Created email and meeting etiquette resources to support efficient email and
meetings.
• Undertook a workforce planning exercise with the APSC and are considering their
draft plan for the OAIC
• Uplifted tech in the Sydney meeting rooms
• We have arranged for our people in Brisbane, Adelaide and Melbourne to meet up
and trial the serviced offices in their city.
Takeaways from 2023 Census
• 75% of employees are satisfied with their job, which is an increase of 12pp. The
2022 result was 63%.
• 80% of employees are proud to work for the OAIC – this is an increase in 17pp on
the 2022 results.
• 86% of employees believe the OAIC supports and actively promotes an inclusive
workplace culture – this is a 10pp increase on the 2022 results.
4
• 86% of employees believe they receive the respect they deserve from colleagues –
this is an increase of 8pp on the 2022 results.
• 79% of employees believe their workgroup has the appropriate skil s, capability and
knowledge to perform well, but only 38% believe their workgroup has the tools and
resources to perform well.
• The OAIC results saw a 5pp increase in the number of employees reporting they
strongly agree or agree with feeling burned out by their work. The branch reporting
the most burn out is the Corporate Branch.
o 23% of R&S strongly agree or agree (down 10pp since 2022)
o 44% of FOI strongly agree or agree (up 7pp since 2022)
o 44% of DR/MI strongly agree or agree (up 12pp since 2022)
o 57% of Corporate strongly agree or agree (up 7pp since 2022)
• Similarly, it is Corporate Branch that always or often finds their work stressful.
o 20% of R&S always or often finds their work stressful (no change)
o 38% of FOI always or often finds their work stressful (down 17pp since 2022)
o 38% of DR/MI always or often finds their work stressful (up 2pp since 2022)
o 57% of Corporate (up 7pp since 2022)
• 5% of staff experienced discrimination on the basis of their background or personal
characteristic. This is a decrease of 5pp on the 2022 results which was 10%.
o The FOI Branch saw an increase in discrimination (from 0% to 7%)
o The R&S Branch saw no changes (steady at 3%)
o The DR/MI Branches saw a drop of 14pp (from 20% to 6%)
o The Corporate Branch saw a drop of 8pp (from 11% to 3%)
5
• 3% of staff were subjected to harassment or bullying. This is a decrease of 8pp on
the 2022 results which was 11%. However, there was an increase of 7pp in relation
to staff who were unsure if they had been subjected to harassment or bullying (this
primarily comes from a better result from the Corporate Branch). The percentage of
staff who reported that had NOT been subjected to harassment or bullying is as
follows:
o 87% of the FOI Branch (from 90% in 2022 down to 87% in 2023)
o 90% of the R&S Branch (from 93% in 2022 down to 90% in 2023)
o 85% of DR/MI Branches (from 84% in 2022 up to 85% in 2023)
o 93% of the Corporate Branch (from 83% in 2022 up to 93% in 2023)
• 1% of staff witnessed behaviour that was serious enough to be viewed as
corruption. This is an increase of 1pp on the 2022 result (which was 0%). The results
do not reflect from where in the agency this observation is made
Version:
Cleared by:
Action officer:
1.0
Melanie Drayton
-
Current at:
Phone number:
Action officer number:
23/08/2023
s47E(d)
-
6
Related HTB: NIL
Related HTB: Nil
FOI HEARING BRIEF Number 3
Staffing – Figures are as at 30 June 2023
Key Points
• 2022-23 ASL cap: 167 (2023-24 cap: 192 per May Budget)
• FTE number: Payrol 159.6 + External 2.6 = Total 162.2
• Headcount: Payrol 183 + External 3 = Total 186
(Definition: Includes al staff on payrol (paid, LWOP, maternity leave, extended paid leave and casual), staff on transfers into the agency
paid for by OAIC and excludes staff on transfers out of the agency not paid for by OAIC)
• OAIC has very limited reliance on contract staff (2.6 FTE which is 2% of total workforce,
down from 4% at prior estimates), performing wel in tough labour market. Use of non-
APS staff is restricted to interim/fil roles whilst more permanent recruitment process
undertaken.
STAFFING ALLOCATION (FTE)
Al ocated
Al ocation as % Actual staffing Actual Staffing Actual Staffing
staffing*
of total staffing Payrol (FTE)
External
Total (FTE)
R&S
36.8
22.7%
33.1
-
33.1
FOI
22.4
13.8%
24.1
0.6
24.7
DR
47.5
29.3%
46.9
1.0
48.9
MI
5.6
3.5%
8.6
-
8.6
Corporate
25.0
15.4%
23.7
1.0
24.7
Legal Services
15.2
9.4%
13.4
-
13.4
Executive
9.5
5.9%
9.8
-
9.8
* Refers to allocation of staffing in the management budget. Actual FTE at 30 June 2023 is displayed in as “Actual staffing Payrol (FTE)”
• The below table sets out the assigned ASL and total budget by Branch.
Budget
Actual
Proposed
2022-23
Proposed 2023-24
2022-23
2022-23
2023-24
Actual
Budget
ASL
ASL*
ASL
Total Branch
Total Branch
R&S
36.8
30.8
41.8
$4,501,388
$6,085,000
FOI
22.4
20.3
22.4 (+8.9)
$3,060,272 $3,207,200 (+$1,234,000)
DR
47.5
43.5
54.8
$6,184,987
$6,282,400
MI
5.6
2.9
7.5
$529,950
$1,805,700
Corporate
23.6
20.0
33.1
$4,108,906
$4,603,700
Legal Services
12.9
10.4
19.2
$7,416,107
$9,735,000
Executive
9.5
9.2
13.8
$3,406,583
$5,254,500
* Actual average for the whole 2022-23 reporting period. The table excludes:
o 2022-23: FOI approved an additional $650,000 as operating loss to support priority
work. Of this extra al ocation $66K was spent in the year.
o 2023-24: FOI approved additional $650,000 as risk-based approach for additional staff
and the remaining $534K from the prior was carried over into FY24. Total proposed
budget is $4,441,000.
EMPLOYMENT TYPE (FTE)
Number FTE
% of total FTE
Jun 2023 Mar 2023 Dec 2022 Jun 2023 Mar 2023 Dec 2022
Ongoing
145.2
139.3
125.5
89%
86%
81%
Non-ongoing
14.4
15.4
21.6
9%
10%
14%
Contractor
2.6
6.6
7.6
2%
4%
5%
TURNOVER (APSC Separation Rate)
Turnover %*
Smal agency %
PS average %
2022-23
15%
Not yet available
Not yet available
2021-22
35%
18%
8.1%
2020-21
18%
16.7%
7%
2019-20
18%
15.8%
5.9%
* Based on APSC definitions which use ongoing headcount (including s.26 temporary transfers into the OIAC)
To increase staff attraction and retention OAIC is:
o continuing to implement OAIC’s Hybrid Work Model that supports attraction of the best
talent from across Australia, and fully supports staff working both from home and the
office,
o improving recruitment processes including appointment of a recruitment specialist to
lead recruitment development,
o implementing a Census Roadmap to respond to the key feedback provided in the
Census,
o providing an ongoing commitment to listening and responding to staff’s needs through
vehicles such as the Stay Survey, and
o providing increased learning & development opportunities through the new LearnHub.
UNPLANNED LEAVE PER FTE
Days per FTE
Smal agency average
PS average
2022-23
9.9
Not yet released
Not yet released
2021-22
8.5
10.1
12.8
2020-21
6.3
9.8
12.2
2019-20
9.4
11.2
13.1
*Defined as personal, carers leave, compassionate leave and jury leave hours 1-7-22 to 30-6-23 as a % of payrol FTE
• What is the OAIC doing about unplanned leave?
o Unscheduled leave is monitored and reported to Operations Committee
2
o Patterns or issues identified to support early intervention and support.
o OAIC has low unplanned leave comparative to APS average
o OAIC has low unplanned leave comparative to smal agency average
Version:
Cleared by:
Action officer:
2.0
Annamie Hale
Mark Smolonogov
Current at:
Phone number:
Action officer number:
14/08/2023
02 9942 4097
02 9942 4243
3
FOI HEARING BRIEF Number-tbc
Legal matters
• The OAIC Legal Team is a dedicated legal team within the Corporate Branch
responsible for the delivery of al OAIC legal services and the management of legal
risk and external legal expenditure in the OAIC.
• The core Legal services provided include:
o Providing legal advice across al OAIC functions and powers (including
complaints, guidance, law reform, procurement, and employment)
o Advising on investigations
o Identifying legal risks and issues that impact on the OAIC and its regulatory
obligations
o Manage and instruct on al OAIC litigation
o Processing FOI requests and reporting on our FOI decision making
o Engage and instruct al external legal service providers, including Counsel
• Below is an overview of the current legal matters with the Legal team.
Legal matters on foot
Major Investigations
• The Legal team and General Counsel provides the Major Investigations Branch with
legal advice and assistance in relation to Commissioner Initiated Investigations into
significant privacy data breaches. These include the Optus, Medibank, Medlab (ACL)
and Latitude Financial Services data breach investigations.
• The Legal team is responsible for engaging, instructing and monitoring external legal
providers (including counsel) assisting with significant data breaches.
• Legal services provided by the Legal team and General Counsel includes: reviewing
notices to produce issued under s 44 of the Privacy Act; reviewing case theory
documents and evidence matrices; drafting and advising on MOUs; attending witness
examinations; and instructing counsel.
• The Legal team has
27 open LEG files at present relating to work undertaken for the
Major Investigation Branch.
Representative complaints and related Federal Court class actions
• The Legal team and General Counsel provides the Information Commissioner with
legal advice and assistance in relation to representative complaints made under the
Privacy Act. These include representative complaints about the Optus, Medibank and
Latitude Financial Services data breaches.
• Legal services provided include: legal advice in relation the conduct of representative
complaints and related Federal Court class actions; drafting and despatching
correspondence to legal representatives; statutory interpretation advice about the
Commissioner’s jurisdiction and operation of relevant provisions in the Privacy Act.
• The Legal team is responsible for briefing and instructing counsel.
• The Legal team has
4 open LEG representative complaint files open at present.
Litigation
• The Legal team and General Counsel manage and instruct on al litigation matters
where the Australian Information Commissioner is a party. This includes Federal
Court, Supreme Court and Administrative Appeals Tribunal applications.
• In accordance with the Legal Services Directions, the Legal team is responsible for
engaging, instructing and monitoring external legal providers (including counsel) who
represent the Information Commissioner in these proceedings.
• The table below provides an overview of current litigation matters managed by the
Legal team. There are
31 open litigation matters as at 24 August 2023.
Jurisdiction
Federal Court
AAT
Supreme Court Qld
Privacy
11
8
2
FOI
3
7
Nil
Total
14
15
2
Requests for legal advice
• The Legal team and General Counsel provides in-house legal advice to the Executive
and staff of the OAIC. Advice is provided in information law (Privacy and FOI),
Consumer Data Right, procurement, contracts, employment law and legal
compliance.
• In accordance with the Legal Services Directions, the Legal team is responsible for
engaging, instructing and monitoring external legal providers (including counsel) who
make be engaged to provide legal advice.
• The table below provides an overview of open legal advice files with the Legal team.
2
Branch
Number of requests
Executive
4
Privacy Dispute Resolution
36
Freedom of Information
7
Regulation & Strategy
16
Major Investigations
3
Corporate
16
Total
82
FOI processing and statistical reporting
• The Legal team is responsible for processing al FOI requests made to the OAIC. The
Legal team also processes administrative access and APP12 requests made for access
to material held in the Legal team.
• As at 24 August 2023, the Legal team has
20 FOI requests and 6
administrative access
requests on hand.
Total number of FOI requests received by the OAIC as at 30 June 2023
2017–18 2018–19 2019–20 2020–21 2021–22 2022–23
Requests received
95
252
235
193
335
334
Personal
39
154
144
121
183
188
Other
56
98
91
72
152
146
Internal Review
2
21
13
17
25
56
Personal
10
7
12
14
26
Other
2
11
6
5
11
30
Total
97
273
248
210
360
390
Complaint handling
• Lawyers in the Legal team and General Counsel are Privacy Officers. The team
processes privacy complaints about the OAIC as an agency and complaints about the
OAIC made under s 36 of the Privacy Act.
• The Legal team also processes service complaints about staff in the Legal team or
other teams where appropriate, complaints made to the Australian Human Rights
Commission, Public Service Code of Conduct complaints, assists with applications
made under the
Public Interest Disclosure Act 2013 and provides advice on
complaints made to the Ombudsman about the OAIC.
3
• The table below provides an overview of open complaint files with the Legal team.
Complaint type
Number
Privacy complaint about OAIC
31
Service complaint about OAIC
21
AHRC complaint
1
Code of Conduct complaint
1
Total
54
Privacy Governance functions
• The Legal team and General Counsel are responsible for managing the OAIC’s Privacy
Management Plan and related Privacy governance functions including conducting
Privacy Threshold Assessments and Privacy Impact Assessments. The Legal team and
General Counsel also manage any data breaches involving the OAIC.
• The table below provides an overview of open files relating to the OAIC’s privacy
governance functions.
File type
Number
PTA
7
PIA
5
PMP
2
Data breaches
1
Total
15
Enterprise bargaining
• The Assistant Commissioner Corporate and Legal team are leading the OAIC’s
Enterprise Bargaining negotiations. This includes the APS wide negotiations (Part A)
and OAIC agency specific negotiations (Part B).
4
Management of the legal services expenditure
• The Legal team and General Counsel are responsible for managing the OAIC’s
external legal services expenditure in accordance with the
Legal Services Directions
2017 and
Public Governance, Performance and Accountability Act 2013. This includes
engaging and instructing legal services providers in accordance with the Whole of
Government Australian Legal Services Panel agreement and engaging and instructing
counsel.
• The Legal team is also responsible for recovering costs awarded to the Australian
Information Commissioner in Court proceedings. The Legal team as
19 open cost
recovery files.
External reporting to the Office of Legal Services Coordination
• The Legal team and General Counsel are responsible for external reporting to the
Office of Legal Services Coordination.
• This includes identifying and reporting significant legal issues, annual reporting of
legal expenditure and certifying compliance with the Legal Services Directions on
behalf of the Australian Information Commissioner.
Version:1.0
Cleared by: Annamie Hale
Action officer: Emma Liddle
Current at: 10/08/23
Phone number: 02 9942 4097
Action officer number: 02 9942 4153
5
FOI HEARING BRIEF Number-05
Com Brief – Budget and Resourcing
The 2023-24 Budget included funding to continue regulation of MyHealth Record, CDR and Digital Identity
initiatives. It also provided additional funding to support the return to the three-Commissioner model. The
funding will support privacy activities, including work responding to the increased complexity, scale, and
impact of notifiable data breaches, as reflected in recent large-scale breaches. Forward estimates are
reduced by terminating measures reducing overal funding by 48% by 2025-26. The OAIC is currently
applying existing resources to reduce the aged FOI matters during 2022-23 and wil continue that work
during 2023-24.
FOI Funding
• Since 2018 the OAIC has sought additional funding for the FOI regulatory function.
• The only additional funding provided has been 2021-22 Budget provided $4.0M over
the forward estimates for the appointment of Freedom of Information Commissioner,
Assistant Commissioner FOI and support staff, $1.0M p.a. ongoing.
• The OAIC is currently applying existing resources to reduce the aged FOI matters
during 2022-23 and wil continue that work during 2023-24. $1.3M from liquidity
reserves has been assigned to fund the work.
• This funding is available due to FOI being unable to ful y utilise their al ocated ASL over
the last 3 years. This arose from difficulty in recruiting staff as needed due to the tight
labour market, partial y driven by COVID.
• The staffing underutilisation has been costed at $1.3M and has arisen as follows:
ASL
FY20
FY21
FY22
Budget 18.
8 20.
2 22.
6
Actual 14.
0 19.
0 21.
7
( 4.
8) ( 1.
2) ( 0.
9)
Cummulative
( 6.
9)
• The additional resource is being funded out of existing liquidity. This was not possible
earlier due to OAIC’s tight liquidity position as indicated by losses over the last 3 years:
FY19
FY20
FY21
FY22
Cash loss ( 0.
7) 0.
5 ( 2.
0) 0.
6
• The liquidity has been released through the move to a new shared services
arrangement and the move to Hybrid working (refer analysis in the Corporate brief).
• The funding profile for FOI is at Appendix A.
Freedom of Information Commissioner
• The Freedom of Information Commissioner, Mr Leo Hardiman PSM KC, commenced with
the OAIC on 19 April 2022 and resigned his appointment to take effect 19 May 2023.
• On 28 March 2023, the Senate referred an inquiry into the operation of Commonwealth
Freedom of Information (FOI) laws to the Legal and Constitutional Affairs References
Committee for report by 7 December 2023, with particular reference to:
a) the resignation of the Commonwealth Freedom of Information Commissioner and the
resulting impacts;
b) delays in the review of FOI appeals;
c) resourcing for responding to FOI applications and reviews;
d) the creation of a statutory timeframe for completion of reviews; and
e) any other related matters.
• The Attorney-General The Hon Mark Dreyfus KC MP announced on 3 May 2023 there wil
be a selection process to fil the Freedom of Information Commissioner role and that in
the interim Ms Toni Pirani has been appointed as acting Freedom of Information
Commissioner, effective 20 May 2023.
• Recent amendments to the AIC Act have al owed the Information Commissioner to
delegate certain FOI functions to senior members of staff. On 3 February 2023, the
Australian Information Commissioner delegated powers under ss 55K, 73 and 86 of the
FOI Act to the SES Band 1 officer in the Freedom of Information Branch.
OAIC 2022-23 & 2023-24 Funding & Measure Status
2022-23
Funding
• The OAIC’s 2022-23 Budget departmental appropriation was $29.7M and $0.63M capital
with an ASL cap of 167.
• 2 active MOUs: $0.2M with ACT government and $0.1M with Home Affairs
• Funding included:
2
o $5.5M (11 ASL) terminating measure, $3.0M in 2022-23 and $2.5M in 2023-24, to
fund the OAIC’s investigation into the information handling practices of Optus.
o $16.5M and $0.5M in capital over 2022-23 and 2023-24 for its privacy regulatory
function to facilitate timely responses to privacy complaints and strengthen
enforcement action relating to social media and other online platforms while waiting
for the review of the Privacy Act to be finalised.
o Funding reduction of $0.4M ($0.45M over forward estimates) for APS reform funding
and election savings measures.
o $3.6M for Consumer Data Right- Future Directions over forward estimates.
Measure Status
• The terminating measures within the October 2022 revised 2022-23 budget being:
Digital Economy Strategy - Consumer Data Right
$1.5M
8.0 ASL
Treasury
Digital Economy Strategy - My Health Record
$2.1M
12.8 ASL
Health
Digital Economy Strategy - Expanding Digital Identity $0.9M
3.5 ASL
Finance
have al been replaced with new terminating measures (refer HTB-04).
• The reduction in the Privacy measure year on year of $0.5M has been offset by the
new Strengthening Privacy measure (refer HTB-04)
• The reduction in the Optus hunting licence year on year of $0.5M (1.6 ASL) has been
offset by the major investigation funding in the new Strengthening Privacy measure
(refer HTB-04)
2023-24
Funding
• The OAIC’s 2023-24 Budget departmental appropriation is $46.5M and $1.0M capital
with an average staffing level (ASL) cap of 192.
• 1 active MOU for $0.2M with ACT Government, concludes 30 June 2024.
• Key funding for privacy of $16.1M (27.5 ASL) ($44.3M over forward estimates) includes
$1M of capital funding. The funding has been provided to support privacy activities,
including work responding to the increased complexity, scale and impact of notifiable data
breaches, as reflected in recent large-scale breaches.
3
• Budget funding also includes $5.2M with 24 ASL (replacing FY23 funding of $3.7M with 20
ASL) to continue terminating funding for the next 2 years for MyHealth Record and CDR
and for 1 year for Digital Identity. [Impact over FES $9.2M]
Measure Status
• Funding reduces at the end of 2023-24 by $15.2M (47 ASL) 33% due to:
o $8.2M (27.5 ASL) terminating Privacy measure awaiting Privacy legislation
o $1.1M (5.5 ASL) terminating Digital ID funding pending new legislation
o $2.5M (9 ASL) terminating Optus measure
o $3.8M (5 ASL) reduction in Strengthening Privacy measure due to end of major
investigation funding
2024-25
• Funding reduces at the end of 2024-25 by $6.9M (18.75 ASL) 22% due to:
o $3.0M reduction in Strengthening Privacy measure due to end of strategic review
and contingent litigation funding
o $2.4M (12.75 ASL) termination of MyHealth Record funding
o $1.7M (6 ASL) termination of short-term CDR funding
• Most of the terminating measures are ongoing obligations for the OAIC subject to
finalisation of legislation around the Digital Economy Scheme and the Privacy Act.
• The My Health Record measure is related to regulating privacy aspects of the My
Health Records system. This replaced the same funding previously provided via an
MOU with the Australian Digital Health Agency.
Summary of Terminating measures & Forward Estimates • Future funding for the OAIC declines over the next 2 years by $22.1M (48% / 66 ASL)
made up of $15.2M (33% / 47 ASL) in FY2024-25 and $6.9M (22% / 19 ASL) in FY2025-26.
This funding reduction comprises:
o $5.2M (24 ASL) in terminating measures related to MyHealth Record, CDR and
Digital Identity
o termination of $2.5M (9 ASL) of the Optus measure in 2023-24
o termination of $3.0M (5 ASL) for major investigation funding in 2023-24
4
o termination of $8.2M (27.5 ASL) of privacy funding in 2023-24. This reduction
may be addressed in the 2024-25 Budget process in the event of Privacy Act
reform.
Version:1.0
Cleared by: Annamie Hale
Action officer: Simon Crone, CFO
Current at: XX/05/23
Phone number:
Action officer number: s47E(d)
5
Appendix A – Funding history
Appendix B – Historical funding profile & composition
7
Description of funding components
Component
Description
OAIC Base Privacy
Total agency funding from 2009 to 2016, solely Privacy base funding after from 2017 onwards after the transfer back from
AHRC and AGD.
Additional Privacy Funding
This includes various terminating measures since 2017, being:
• Privacy & Social Media - First tranche - To support a new privacy regime for social media and online platforms that trade
in Australians' personal information, underpinning new penalties and enforcement powers under the Privacy
Act, ensuring that there are appropriate safeguards and penalties for the misuse of Australians' private information,
including by major social media platforms.
• Transition of shared services & federal court costs - To cover transition costs to DESE and SDO/SAP as wel as the
ongoing litigation on social media.
• Privacy & Social Media - Second tranche - To process privacy complaints and enhance the OAIC's capacity to take
regulatory action for breaches of privacy, such as litigation against social media platforms. Al ows for funding until
completion of review of the Privacy Act
• Strengthening Privacy – funding in 23-24 budget to support NDB work (incl. major investigations), data capability,
strategic review and a Privacy Commissioner.
OAIC Base FOI
Comprises the FOI funding returned to the OAIC after the reorganisation, being:
(2017 onwards)
• 2017 the funding returned from AHRC and AGD
• 2018 the funding returned from AAT including merits reviews, document management and dealing with clients
previously handled by the AAT
FOI Commissioner
To fund the FOI Commissioner and support staff.
(2022 onwards)
CDR
Combines the various CDR components, being:
(2019 onwards)
• The OAIC and Australian Competition and Consumer Commission (ACCC) co-regulate the CDR scheme. The OAIC is the
primary complaint-handler and has responsibility for overseeing the privacy aspects of the scheme. The OAIC also works
closely with the ACCC to deliver a consumer education campaign and to publish guidance for consumers and industry.
• VDR Enhancement & Future Directions - Continued regulation of the CDR scheme reflecting the expansion of the scheme
to include new sectors.
8
Description of funding components (continued)
National Security
Regulatory oversight of privacy implications arising from the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act
(2016, 2017 to 2019 in AHRC) 2014 and the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015. Oversight includes
provision of guidance material, assessments, advice and complaint handling activities.
Welfare data matching
To provide regulatory oversight of privacy implications arising from the Department of Human Services’ (DHS) Increased
(2016 to 2019)
Welfare Compliance from Data Matching NPP
MBS/PBS
Complaint handling for the guaranteeing Medicare regime, and the mechanism through which consumers can seek a formal
(2019 onwards)
remedy to redress a breach of their privacy; and respond to general enquiries from the community. This includes
investigating and taking enforcement action in relation to breaches of the scheme, including the conduct of Commissioner-
Initiated Investigations. The funding also enables the OAIC to undertake two privacy assessments (audits) per year to
proactively monitor whether information subject to the arrangements is being maintained and handled in accordance with
the relevant legislative obligations and recommend how areas of non-compliance can be addressed and privacy risks
reduced.
Digital Identity
To acquit the statutory requirements of the digital identity scheme while also appropriately focusing on the timely
investigation and enforcement of high-privacy risks.
MyHealth Record
To continue to undertake the My Health Record privacy regulatory functions. This is done to provide the community with
confidence in the handling of digital health information.
Optus
To support the OAIC’s response to the Optus incident in the form of an investigation into the personal information handling
practices of Optus companies.
9
Appendix C – Historical ASL Cap profile
10
Related HTB: Nil
Inquiry into the operation of Commonwealth Freedom of Information (FOI) laws
COMMISSIONER BRIEF Number 6
Information Commissioner reviews
• Prior to 2022-23 (in which, for the first time since 2015-16, the OAIC experienced a
decrease in the number of IC reviews received compared to the previous year), the OAIC
experienced a significant increase in the number of IC reviews received each year. We
continue to examine the way we perform our IC review function and to identify and
implement changes to maintain and improve our performance. While IC reviews
continue to be finalised in increasing numbers, there is a growing number of older
matters that are unable to be finalised in a timely way within existing resources.
•
Initiatives to improve finalisations and reduce aged matters: The OAIC is continuously
looking at ways to increase the number of finalisations as wel as to reduce the number
of matters over 12 months old:
o We have focused greater resources within the FOI Branch to IC reviews, including
restructuring the branch to place more resources into case management resulting in
improved al ocation times of IC reviews for case management.
o We have focused on finalising al 2018 IC reviews by the end of August 2023 (or
shortly thereafter) and prioritising the finalisation of 2019 IC reviews this financial
year. We have written to parties in IC reviews received in 2020 to confirm whether a)
applicants wish to proceed with their IC reviews and b) whether respondents wish to
maintain their exemption claims.
o We are considering publishing statistics about our current case load which we
anticipate wil assist applicants to identify the stage they are currently in.
o The OAIC has consulted on proposed revisions to the 2 existing procedure directions
(one for agencies and ministers, and one for IC review applicants) (see Commissioner
Brief – IC review procedure direction). The proposed changes are intended to
facilitate greater engagement between applicants and respondent agencies and
ministers during the IC review with a view to resolving IC reviews in a more timely
and cost effective way. The revised procedure direction:
o clarifies the process for dealing with IC review applications involving
deemed access refusal decisions
o requires agencies and ministers to undertake engagement with an
applicant at the commencement of an IC review
o provides that submissions wil only be requested after the completion of
the initial triage and early resolution process, and fol owing any case
management activities that may occur as a result of the compulsory
engagement process
o provides that no further submissions wil be accepted from either party
to an IC review (unless either requested by the OAIC or procedural
fairness requirements are identified)
o articulates additional potential regulatory action for non-compliance
with the direction.
o We are identifying decisions which could assist in the resolution of certain priority
cohorts of matters (searches, charges, practical refusals, and IC reviews relating to
change of government) without proceeding to a s 55K decision, for example the
charge decision in
‘ABX’ and Department of Veterans’ Affairs (Freedom of
information)
[2022] AICmr 57 and the practical refusal decision in
Chris Drake and
Australian Transaction Reports and Analysis Centre (Freedom of information) [2023]
AICmr 6 (8 February 2023).
o Recent amendments to the
Australian Information Commissioner Act 2010 permit
delegation of IC review decisions made under s 55K. The Information Commissioner
delegated the s 55K power to the Assistant Commissioner, Freedom of Information
on 3 February 2023. This is al owing more routine IC reviews to be able to be
finalised by a delegate. The Assistant Commissioner has recently made the fol owing
decisions under s 55K:
o
‘ADY’ and The Treasury (Freedom of information) [2023] AICmr 60 (14
July 2023)
2
o
‘ADZ’ and Department of Industry, Science and Resources (Freedom of
information) [2023] AICmr 62 (26 July 2023)
o
Jeremy Kirk and the Australian Federal Police (Freedom of
Information) [2023] AICmr 61 (17 July 2023)
o
John Abbot and the Bureau of Meteorology (Freedom of
information) [2023] AICmr 54 (30 June 2023)
o The OAIC has also moved to a protected network, which has reduced the resources
required in receiving documents via safe hands or via Kojensi, which has assisted
with focusing resources and time on the resolution of matters.
•
Expedition/Prioritisation: Some applicants in more recent IC reviews have requested
that their matters be prioritised or expedited. While the OAIC is continuously looking at
ways to increase the number of finalisations and seeks to progress al matters in a timely
manner, we require persuasive reasons to give recent IC reviews precedence over the
growing number of older matters.
•
IC review timeframes: The timeframe for resolving IC reviews depends on various
factors, including:
o whether an extension of time is required for the applicant to lodge an
application (s 54T)
o the nature of the access refusal reason, including whether it was original y a
deemed access refusal and/or it involves consideration of exemption claims
o the nature of the exemption claims (non-conditional/conditional exemptions)
and whether any third party consultation is required
o the number of exemptions/issues under consideration
o the number of documents at issue and the manner in which exemptions are
applied (if any)
o the classification of the documents at issue and whether the OAIC possesses a
copy of the documents or must inspect the documents
o whether the application is finalised by agreement (s 55F), withdrawal (s 54R),
discontinued/declined (s 54W), or a Commissioner decision (s 55K)
3
o whether it requires specific procedural steps to be undertaken during the IC
review process prior to proceeding to a decision (seeking evidence from the
Inspector-General of Intel igence and Security (ss 55ZA–55ZD))
o the resourcing available to undertake the IC review function.
The table below sets out
ideal average timeframes for the finalisation of particular IC review
applications, where:
• the decision under review is not a ‘deemed access refusal’
• the process is based on the
current IC review procedure direction,
• each matter is proceeding through the process with little delay, including where the
parties are providing responses within the set timeframes and responses are
provided through informal requests rather than compulsive powers
• the preliminary views may be issued with a s 54Z notice
• there are no matters awaiting al ocation
• there are sufficient resources al ocated to the IC reviews function, including:
o multiple sub-teams to specialise in cohorts of matters, and
o there are sufficient decision makers to issue s 55K decisions.
Categories
Ideal time range
Single issue: Adequacy of searches
2 – 3 months
Single issue: Practical refusal
3 – 6 months
Single issue: Charges
2 – 6 months
Single issue: Exemptions (Single issue/Limited documents)
3 - 6 months
Multiple issues: Exemptions (s 33/34)
6 - 9 months
* May depend on IGIS response time
Multiple issues: Exemptions (Multiple issues/Multiple
6 - 12 months
documents/Third party consultation)
4
link to page 38 link to page 38 link to page 38
Related HTB: Nil
Inquiry into the operation of Commonwealth Freedom of Information (FOI) laws
IC REVIEW STATISTICS
2010–11
2011–12
2012–13
2013–14
2014–15
2015–16
2016–17
2017–18
2018–19
2019–20
2020–21
2021–22
2022–23
Received
178
461
507
524
373
510
633
802
928
1,067
1,225
1,955
1,647
Finalised
26
254
419
646
482
454
515
610
659
829
1,017
1,376
1,519
KPI
1
100%
57%
40%
72%
71%
87%
86%
84%
73%
71%
73%
83%
78%
Ave time to finalise
(months)
2.0
5.6
8.8
9.2
9.2
6.8
6.2
6.7
7.8
8.1
8.3
6.4
9.8
Finalised less than
12 months
26
233
289
462
343
395
445
513
482
592
740
1,144
1,180
Finalised more
than 12 months
21
130
184
139
59
70
97
177
237
277
232
339
On hand end
period
152
359
447
325
216
272
390
582
851
1,089
1,297
1,876
2,004
On hand end
period >12 mths
57
104
108
34
14
18
81
250
459
666
919
1,216
On hand end
period >24 months
7
27
13
5
16
118
261
499
655
IC review deemed
refusal (s 15AC)
N/A
N/A
N/A
N/A
N/A
N/A
N/A
21
57
349
465
1,107
854
HOW IC REVIEWS ARE FINALISED
2010–11 2011–12 2012–13 2013–14 2014–15 2015–16 2016–17 2017–18 2018–19 2019–20 2020–21 2021–22
2022–23
Without formal
18
96
198
318
174
157
160
229
268
333
402
514
476
decision
2
(69%)
(38%)
(47%)
(49%)
(36%)
(35%)
(31%)
(38%)
(41%)
(40%)
(40%)
(37%)
(31%)
Withdrawn
108
115
186
115
175
223
200
275
334
409
684
879
3
4
(15%)
(43%)
(27%)
(29%)
(24%)
(39%)
(43%)
(33%)
(42%)
(40%)
(40%)
(50%)
(58%)
1 From 2010-11 to 2012-13 KPI was 80% within 6 months. From 2013-14 onwards KPI is 80% within 12 months.
2 Finalised under: s 54W(a) (deemed acceptance of PV/appraisal; discontinued) s 54W(a)(i) (frivolous, vexatious, misconceived, lacking in substance, not in good faith), s 54W(a)(ii) (failure to cooperate), s 54W(a)(ii ) (lost contact), s
54W(c) (failure to comply), s 89K (vexatious applicant declaration (as entered in Resolve; this was reported as
‘s 89M(2)(b) – refuse to consider’ in last year’s annual report)), s 54N (invalid/out of jurisdiction).
3 Finalised under s 54R (withdrawn by applicant).
link to page 39 link to page 39 link to page 39 link to page 39 link to page 39 link to page 39 link to page 39
s 55F
2
0
3
4
10
13
42
25
29
14
6
2
4
1
(4%)
(1%)
(0%)
(0%)
(1%)
(2%)
(3%)
(7%)
(4%)
(3%)
(1%)
(0%)
(0%)
s 54W(b)
22
17
41
61
32
15
16
31
83
138
69
94
5
0
(0%)
(9%)
(4%)
(6%)
(13%)
(7%)
(3%)
(3%)
(5%)
(10%)
(14%)
(5%)
(6%)
s 55K
26
89
98
128
80
104
123
60
50
54
103
68
6
3
(12%)
(10%)
(21%)
(15%)
(27%)
(18%)
(20%)
(20%)
(9%)
(6%)
(5%)
(7%)
(4%)
Total finalised
26
254
419
646
482
454
515
610
659
829
1,017
1,376
1,519
IC REVIEW OUTCOMES (S 55K)
2010–11 2011–12 2012–13 2013–14 2014–15 2015–16 2016–17 2017–18 2018–19 2019–20 2020–21 2021–22 2022–23
Varied
0
3
5
23
19
16
10
4
7
7
10
9
7
0
(0%)
(0%)
(3%)
(5%)
(18%)
(24%)
(15%)
(8%)
(7%)
(14%)
(13%)
(10%)
(13%)
Affirmed after
11
17
9
3
8
6
10
3
s 55G
8
1
18
58
40
53
(14%)
(16%)
(7%)
(5%)
(16%)
(11%)
(10%)
(4%)
(33%)
(69%)
(65%)
(41%)
(41%)
Affirmed without
28
48
59
16
16
19
47
8
s 55G
9
(35%)
(46%)
(48%)
(27%)
(32%)
(35%)
(46%)
(12%)
Set aside
8
28
53
52
22
23
45
37
19
22
36
48
10
2
(67%)
(31%)
(31%)
(54%)
(41%)
(28%)
(22%)
(37%)
(62%)
(38%)
(41%)
(35%)
(71%)
Total
3
26
89
98
128
80
104
123
60
50
54
103
68
4 Finalised under s 55F (review parties reach agreement).
5 Finalised under s 54W(b) (AAT review).
6 Finalised under s 55K (decision of Information Commissioner).
7 Decision under review altered or changed in some way, for example access is refused on the basis of a different exemption as was set out in the decision under review.
8 Revised decision under review (s 55G) upheld.
9 Decision under review upheld.
10 Decision under review (including original decision, internal review decision or s 55G decision) was wrong and not the correct/preferable decision.
6
Matters on hand by date received as at 30 June 2023
Total
Total
IC
number
number
IC
reviews
of hand
on hand
reviews
on hand
at
at 31
on hand
at 29
31 Dec 22 March 23 at 30 June
August
2018
54
39
27
12
2019
241
202
155
148
2020
341
316
285
279
2021
474
461
437
433
2022
892
747
641
619
2023
-
279
459
547
Total
2,002
2,044
2,004
2,038
• Number of IC reviews on hand from 2018: 12
• Number of IC reviews on hand from 2019: 148
• Oldest IC review on hand at
28 August 2023:
o Date of receipt:
29-Mar-18
o Number of months old:
65.0
7
IC reviews on hand
IC reviews on hand
2,500
2,000
1,500
1,000
500
-
2010–11 2011–12 2012–13 2013–14 2014–15 2015–16 2016–17 2017–18 2018–19 2019–20 2020–21 2021–22 2022–23
IC reviews received
178
461
507
524
373
510
633
802
928
1,067
1,225
1,955
1,647
IC reviews finalised
26
254
419
646
482
454
515
610
659
829
1,017
1,376
1,519
IC reviews on hand at period close
152
359
447
325
216
272
390
582
851
1,089
1,297
1,876
2,004
8
IC reviews requests as a percentage of all agency FOI requests received
IC review requests as a percentage of all agency FOI requests received
42,000
6%
35,000
5%
28,000
4%
21,000
3%
14,000
2%
7,000
1%
0
0%
2010–11
2011–12
2012–13
2013–14
2014–15
2015–16
2016–17
2017–18
2018–19
2019–20
2020–21
2021–22
2022–23
Agency requests received
23,605
24,764
24,944
28,463
35,550
37,996
39,519
34,438
38,879
41,333
34,797
34,236
34,225
IC reviews received
178
461
507
524
373
510
633
802
928
1,067
1,225
1,955
1,647
% of all FOI requests
1%
2%
2%
2%
1%
1%
2%
2%
2%
3%
4%
6%
5%
Version: 1
Cleared by: Rocel e Ago
Action officer: Justin Lodge
Current at: 4/05/23
Phone number: 9942 4205
Action officer number: 02 9942 4163
9
link to page 43
Related HTB: NIL
Inquiry into the operation of Commonwealth Freedom of Information (FOI) laws
COMMISSIONER BRIEF Number 7
Australian Government agency and ministers FOI statistics
• The OAIC has received media enquiries about Australian government agency and
ministerial FOI statistics which we col ect and publish in our
annual report and on
data.gov.au. The media enquiries have related to delays and agency compliance with
statutory timeframes, use of exemptions and the increasing number of access refusal
decisions. There have been media coverage of agencies’ use of exemptions and delays
within the system:
o In March 2023, the Australia Institute published a
critical media article on lengthy
delays undermining the confidence in FOI processes.
o On 20 March 2023 th
e MediaWatch ABC program covered a story with headlines
from a Financial Review article of 6 March 2023:
‘FOI Commissioner quits, citing lack
of power and delays’. The story goes on to reference an email by Paul Farrel , ABC
journalist, of 22 March 2023 noting:
‘I’ve lodged more than 500 FOI requests over
the last decade and almost every one of them has been a battle. Agencies use every
trick in the book to delay, evade, stymie and frustrate access to important
government information’.
o In 2022, the Centre for Public Integrity published a
report critical of delays and use
of exemptions in Australia’s FOI system.
• Agencies and ministers are required to submit quarterly and end of year FOI statistics to
the OAIC including the number of requests received, on hand and finalised. However,
following a change of government a minister may not have access to documents of a
former Minister. A question arises about reporting and processing of the ‘on hand’ or
outstanding requests of a former Minister should be reported and managed. See
Com
Brief – FOI Change of Government and official documents of a minister’.
Number of FOI requests received1
• In 2022-23, 34,225 FOI requests were made to agencies and ministers.
o This is (essential y) the same as in 2021–22 (when 34,236 requests were received).
o In 2021-22, there was a 2% decrease in the number of requests compared with
2020-21.
• Some agencies experienced significant decreases in FOI requests in 2022–23, however
this was offset by other agencies experiencing significant increases. There was a
decrease in the number of requests made to the ‘top 20’ agencies in 2022–23 (87% of al
1 Statistics taken from the FOI statistics database for 2022–23 (not yet published in the OAIC Annual Report 2022-23).
link to page 44
requests, compared with 90% in 2021–22) and an increase in requests to the remaining
agencies (13% of al requests, compared with 10% in 2012–22).
• The agencies that experienced significant decreases in FOI requests in 2022–23 include
the Department of Home Affairs (–11%), the National Disability Insurance Agency (–7%),
the Department of Veterans’ Affairs (–11%), the Department of Health and Ageing (–
58%), the Australian Securities and Investments Commission (–22%) and the Immigration
Assessment Authority (–36%).
• The agencies that experienced significant increases in FOI requests include Services
Australia (+11%), the Australian Taxation Office (+40%), the Department of Defence
(+57%), the Australian Federal Police (+38%), the Australian Research Council (+4,686%),
the Attorney-General’s Department (+53%), the Department of Infrastructure,
Transport, Regional Development, Communications and the Arts (+13%) and the
Department of the Treasury (+40%).
• The top 20 agencies received essential y the same number of requests for access to
personal information as they did in 2021–22 (24,098 compared with 24,207 in 2021–22).
However, there was a decrease in non-personal requests to the top 20 agencies (down
10%).
• Of al FOI requests made to agencies and ministers, 74% were for
personal information
(25,235) and 26% for
non-personal information (8,990). This is the same proportion as
in 2021–22. The OAIC has previously noted that in 2021–22 there was a smaller
proportion of requests for personal information than in previous years and that this was
part of a continuing trend of declining requests for personal information (when
expressed as a proportion of all FOI requests).
Number of FOI requests decided
• 21,228 FOI
requests were decided2 in 2022-23.
o 5,376 FOI requests were granted in full (25% of al requests decided)
2 Covers access granted in full, in part or refused.
2
link to page 45
a decline on 2021-22, when 39% were granted in ful
there has been a gradual decline in the number of FOI requests granted in
full dating back to 2011-12.
o 11, 055 FOI requests were granted in part (52% of al requests decided)
3
an increase on 2021-22, when it was 42%
o 4,79 FOI requests were refused (23% of al requests decided)
an increase on 2020-21, when it was 19%.
Exemptions claimed
• 14,575 of al FOI requests decided involved
exemption claims (69% of requests decided).
•
Top 6 exemptions (and percentages) 2022–23
Percentage of FOI
Number of times
Exemption
requests in which
exemption applied
exemption applied
Personal privacy (s 47F)
39%
6,452
Certain operations of agencies (s 47E) 26%
4,209
Documents affecting enforcement of
law and protection of public safety
7%
1,077
(s 37)
Secrecy provisions of enactments
(s 38)
6%
931
Business (s 47G)
5%
864
Deliberative processes (s 47C)
5%
783
Statutory timeframes
• In 2022-23, 74% of al FOI requests were decided within the
statutory timeframe.
3 In December 2022, the OAIC updated its FOIstats Guide to clarify that if irrelevant matter is deleted from a document before it
is released, the outcome of the request is ‘granted in part’. Note: when asked whether the new guidance was the reason for
increases of the proportion of requests granted in part, many agencies denied this was a relevant factor.
3
• This is an improvement in timeless from 2021–22, when 70% of al requests were
decided in time, but stil represents an overal decline in timeliness from 2020-21 (77%),
2019-20 (79%) and 2018-19 (83%).
• The improvement in timeliness is due to a small increase in the percentage of personal
FOI requests decided in time in 2022–23 (50% compared with 48% in 2021–22). However
this still means that half of all requests for access to personal information were not
decided within statutory timeframes in 2022–23. This negatively impacts the rights of
members of the public to access information, including individuals seeking their own
personal information.
• Agencies have identified high staff turnover, difficulty recruiting staff (particularly
experienced FOI practitioners), onboarding and training of new FOI staff who may be in
other geographical locations and increased complexity and volume in the FOI caseload
as reasons for the decline in timeliness of decision-making.
•
Timeliness
Year
% processed
< 30 days
< 60 days
< 90 days
90+ days
within
beyond
beyond
beyond
beyond
statutory
statutory
statutory
statutory
statutory
timeframes
timeframes
timeframes timeframes timeframes
2022–23 74%
7%
3%
2%
14%
2021-22
70%
7%
3%
1%
19%
2020-21
77%
6%
2%
2%
12%
2019-20
79%
7%
2%
2%
10%
2018-19
83%
8%
4%
3%
2%
Charges
• There was a 9% decrease in the
amount of charges notified in 2022-23 compared to the
previous year ($249,666).
• There was a 14% increase in the
amount of charges collected in 2022-23 compared to
the previous year ($86,080).
Version: 1
Cleared by: Rocel e Ago
Action officer: Raewyn Harlock
Current at: 15/08/2023
Phone number: 02 9942 4205
Action officer number: 02 9297 9425
4
Related HTB: NIL
Inquiry into the operation of Commonwealth Freedom of Information (FOI) laws
COMMISSIONER BRIEF Number 8
FOI Complaints
• In 2022/23, 3 complaint investigations were finalised under s 86 notice on
completion. Al 3 of these matters included recommendations that Commissioners
believe the agency should implement to address identified areas of non-compliance.
• The most complained about agencies as at 30 June 2023 are:
o Department of Home Affairs (35)
o Department of Veterans’ Affairs (23)
o Department of Human Services - Services Australia (19)
• The issues most commonly raised across each of these agencies are:
o agencies not meeting statutory timeframes
o poor customer service
o concerns regarding the practical refusal consultation process,
o the imposition or amount of a charge.
• Other issues raised in complaints include:
o actions taken by specific individuals in relation to decision making and release
of documents, and
o delay in providing the relevant documents fol owing the notification of the s 26
statement of reasons.
Related HTB: NIL
Inquiry into the operation of Commonwealth Freedom of Information (FOI) laws
FOI COMPLAINT STATISTICS
2010-11 2011-12 2012-13 2013-14 2014-15 2015-16 2016-17 2017-18 2018-19 2019-20 2020-21 2021-22
2022-23
Received
88
126
148
77
31
1
36
62
61
110
152
216
212
Finalised
38
100
149
119
64
0
18
29
22
71
174
223
124
KPI
100%
96%
90%
82%
81%
N/A
100%
83%
82%
52%
82%
74%
94%
Ave time to
finalise (months)
2.3
5.4
5.0
7.2
5.8
N/A
3.0
5.9
7.2
11.6
6.8
10.5
4.1
Finalised less
38
96
134
98
52
0
18
24
18
37
142
164
than 12 months
116
Finalised more
0
4
15
21
12
0
0
5
4
34
32
59
than 12 months
8
On hand end
period
50
76
75
33
0
1
19
52
91
130
108
101
189
On hand end
0
8
2
5
0
0
0
4
36
52
69
period >12 mths
27
74
On hand end
period >24
0
0
0
0
0
0
0
0
4
13
33
12
21
months
link to page 49
FOI COMPLAINT OUTCOMES1
2010-11 2011-12 2012-13 2013-14 2014-15 2015-16 2016-17 2017-18 2018-19 2019-20 2020-21 2021-22 2022-23
s70 - not in
11
17
25
18
10
2
2
1
4
31
36
49
jurisdiction
s73(a)- not exercising
power
2
9
1
2
2
2
1
s73(b) - merits review
4
8
1
5
1
27
54
21
s73(d)(i) - adequately
dealt with
22
8
3
3
2
1
s73(d)(i) - adequately
7
8
7
dealt with - pre PV
s73(d)(i ) - dealing
2
3
1
1
with complaint
s73(e) - frivolous,
vexatious, lacking in
2
16
23
24
8
3
7
8
6
24
21
1
substance
s73(f) -insufficient
interest
1
8
s74 - referred
1
1
12
7
Ombudsman
Referred
1
4
3
s86 - no
recommendations
2
10
26
8
16
1
15
1
12
made
s86 -
recommendations
1
1
6
1
4
13
2
32
3
made
Withdrawn/conciliate
2
9
11
4
1
1
2
11
46
28
17
d
Withdrawn
5
31
31
29
8
8
8
10
19
30
46
33
Total
38
100
149
119
64
N/A
18
29
22
71
174
223
124
1 One complaint may have multiple issue outcomes, thus the total may not equal the sum of rows.
3
Matters on hand by date received
Matters on
Year
hand 30
received
June 2023
Percentage
2019
5
3%
2020
8
4%
2021
34
18%
2022
65
34%
2023
77
41%
Total
189
100%
• Oldest complaint on hand at
30 June 2023:
o Date of receipt:
19-Feb-19
o Number of months old: 52.3
Version: 1.0
Cleared by: Rocel e Ago
Action officer: Jackie Scolyer
Current at: 11/0/2023
Phone number: 02 9942 4205
Action officer number: 02 9246 0585
4
Related HTB: NIL
Inquiry into the operation of Commonwealth Freedom of Information (FOI) laws
COMMISSIONER BRIEF Number 9
Department of Home Affairs – Compliance with statutory processing
timeframes
• The Department of Home Affairs’ ability to meet decision-making statutory timeframes
under the FOI Act has been the subject of various investigations, including two
Commissioner initiated investigations (CIIs) since the commencement of the OAIC.
• The Information Commissioner’s most recent regulatory action against the Department
includes a CI into the Department’s non-compliance with the statutory processing period
when processing FOI requests for non-personal information (See
Appendix A), and the
investigation of a cohort of 17 complaints about the Department’s non-compliance with
the statutory processing period when processing requests for personal information. (See
Appendix B). The Department accepted and implemented al of the CI
recommendations. The Department’s responses in relation to the recommendations for
the personal information cohort indicates that it had sought to implement initiatives that
it considered would address the issues identified in the investigation completion notices
and that it had undertaken the tasks it
had committed to undertake.
• The OAIC has sought updates of the actions
taken by the Department to resolve the
issues arising out of the complaint investigations recommendations and increase in IC
review applications of deemed access refusal decisions, including the 885 IC review
applications of deemed access refusals in 2021-22 and 594 in 2022-3 which appeared to
largely involve requests for personal information. The Department has provided the OAIC
updates on operational initiatives it has undertaken to supplement its resources,
including the increased use of robotic process automation and administrative access.
(See
Appendix C for engagement between OAIC and DHA regarding systemic compliance
issues). For further information about deemed access refusals, see
Comm-Brief – IC
review of deemed access refusal decisions.
• To assist in monitoring the impact of the Department’s initiatives, the OAIC requested
the Department provide statistics relating to the number of requests received, finalised,
on hand and overdue on a quarterly basis from 21 April 2023 to 21 January 2024. (See
Appendix D).
• The Department's quarterly report as at 30 June 2023 provides that at the beginning of
the 2022-23 financial year, there were 6,636 requests on hand with 5,665 overdue. As at
30 June 2023, there were 2,358 on hand with 1,499 overdue, representing a 73.5%
reduction in the number of overdue requests on hand. The Department advised that ‘If
current productivity levels are sustained, it can anticipate a manageable caseload by
November 2023'. (See
Appendix E for Department’s responses and also
Appendix F for
caseload comparison).
• Th
e FOI Regulatory Action Policy sets out factors that the Information Commissioner
takes into account in deciding whether or not to exercise its enforcement powers in
relation to investigations:
o the objects of the FOI Act
o whether or not the agency or individual has complied with the notice to
produce, notice to appear or recommendation
o whether or not the agency or individual has attempted to comply with the
notice to produce, notice to appear or recommendation and any reasons given
for non-compliance, and
o any other factors the Information Commissioner considers relevant in the
circumstances.
• In the context of the personal cohort investigation recommendations, and in considering
whether to issue an implementation notice under s 89, the fol owing factors are relevant:
o The Department's initial and subsequent response to the recommendations,
including its advice that it can ‘anticipate a manageable caseload’ by November
2023 and implementation of specific recommendations relating to operational
instructions and training.
o Departmental initiatives undertaken including additional resources, increased
use of robotic process automation and administrative access.
o The Department’s preparedness to continue to make decisions or provide
administrative access on overdue requests.
o The significant reduction of the number of overdue requests.
o The reduction of incoming IC review applications involving deemed access
refusal decisions.
o The time given to the Department to provide quarterly reports of its caseload
(to 21 January 2024).
• These factors must be balanced with:
o The objects of the Act for functions and powers to be performed and exercised
as far as possible to facilitate and promote public access to information,
promptly, and at the lowest reasonable cost.
o The time already given to the Department to address the issues outlined in the
completion notices and to implement the initiatives it had seen fit to address
such issues.
o The further time it wil take to ensure that al matters are being completed
within the statutory processing period.
o The absence of any detailed action plan by the Department to ensure that it wil
meet its statutory processing/decision making timeframes.
o Consideration of the impact of the recommendations on other initiatives the
Department is implementing.
It is open to the Information Commissioner to issue an implementation notice under s 89
of the FOI Act, requiring the agency to provide to the Information Commissioner, within a
specified timeframe, particulars of any actions the agency wil take to implement the
Information Commissioner's recommendations. The Information Commissioner may wish
to consider this enforcement action fol owing consideration of the Department’s 21
October 2023 report, which should provide an indication as to whether any requests wil
be or remain overdue by 1 November 2023.
2
• Should the Department fail to respond to the implementation notice within the time
specified in the notice or the agency has not taken action that is adequate or appropriate
in the circumstances to implement the investigation recommendations, the Information
Commissioner may give a written report to the responsible Minister (s 89A)(2)) (the
Minister for Home Affairs) and the Minister responsible for the administration of the FOI
Act (s 89(3)) (the Attorney-General). The Minister responsible for the FOI Act must table
the report before each House of the Parliament (s 89A(5)).
• In considering other regulatory actions available, consideration has also been given to
other functions as set out in s 8 of the
Australian Information Commissioner Act 2010:
o making reports and recommendations to the Minister about
proposals for legislative change to the FOI Act or
administrative action necessary or desirable in relation to the operation
of the Act (s 8(f)).
o monitoring, investigating and reporting on compliance by agencies with the FOI
Act.
• Consideration could be given issuing a general report on the Department’s compliance
with the FOI Act (similar to the report issued on th
e Disclosure log desktop review),
however there are no specific regulatory consequences that flow on from this particular
action.
Version: 1.0
Cleared by: Rocel e Ago
Action officer: Jackie Scolyer
Current at: 17/08/23
Phone number: 02 9942 4205
Action officer number: 02 9246 0585
3
Related HTB: NIL
Inquiry into the operation of Commonwealth Freedom of Information (FOI) laws
Appendix A: Commissioner-initiated investigation into the Department of Home Affairs’ compliance
with statutory timeframes for processing FOI requests for non-personal information
Date of notice on completion: 11 December 2020
Outcome: 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.
1. 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:
a. 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.
b. 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.
c. 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:
a. 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.
b. 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.
4. There are inadequate policies and procedures in place to support compliance with the requirements of section 6C of the FOI Act.
Implementation: The Department has implemented al the recommendations made in relation to the non-personal caseload and has demonstrated a significant improvement in timeliness
and quality of decisions (Response received 20 January 2023)
Recommendation
Agency response
Assessment of
response
1.
Appoint an Information Champion
Provided advice on 6 January 2021:
Implemented 6
The Information Champion may be supported by an
J anuary 2021
information governance board to provide leadership,
The Department wil formal y appoint First Assistant Secretary, Data Division to be the Department’s
oversight and accountability necessary to promote and
Information Champion. This position is already supported by the Department’s information governance
operationalise compliance by the Department.
board, the Data Governance Council, and regularly reports to senior executives and the Department’s
Operations Committee on the Department’s performance under the
Freedom of Information Act 1982
Du
e 8 January 2021
(FOI Act).
2.
Operational Processes and Procedures
Response received 3 May 2021.
Implemented 3
The Department prepare and implement an operational
(Note that the Department provided a corrected version on 4 May 2021 – with the correct date applied (30 May 2021
manual for processing FOI requests for non-personal
April 2021))
information to be approved by the Information Champion
referred to in Recommendation 1 and at a minimum:
Recommendation
Agency response
Assessment of
response
I’m pleased to advise the Department’s new operational manual was approved on Friday by the
(a) specify the steps that wil be taken to ensure
Information Champion and is now in effect from 30 April 2021. In accordance with the Department’s
compliance with statutory processing requirements (as
policy and procedure control framework, this is cal ed a Procedural Instruction (PI). The PI is supported
set out in more detail in Part 5),
by two User Guides, representing the recommended ‘short form guidance’. We are of the view the
Department has now implemented recommendation 2 from the CI report.
(b) specify the steps that wil be taken to ensure
compliance with section 6C of the FOI Act and the
… the PI is in effect, but we expect it to be regularly reviewed and updated, particularly as we
processes to be adopted to request documents from
commence operating in accordance with it. Please let us know if you have any feedback and we can
contracted service providers, and
consider this in the context of future updates.
(c) include a short form guidance note to assist business
….We are of the view the Department has now implemented recommendation 2 from the CI report
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 wil be taken to ensure compliance with
section 6C of the FOI Act, as referred to in subparagraph
(c), should be replicated in al other policies of the
Department which relate to contractual requirements for
procurement by the Department.
Due 8 April 2021
3.
Training
Response on 3 May 2021:
Implemented
The Department:
20 October 2021
(a) undertake and complete training for FOI Section staff
By way of further update on recommendation 3, we have commenced the development of an e-learning
and other staff (both decision makers and other staff
training package aligned with the PI, which we hope to rol out to staff by July.
who assist decision makers), and
Response on 3 August 2021:
(b) ensure that online training in processing FOI requests
for non-personal information is available to all staff of
The Department has also made significant progress in implementing Recommendation 3:
the Department.
• We have delivered training on the new
Procedural Instruction for Processing non-personal
Freedom of Information requests to al FOI section staff and other significant business areas of the
New staff joining the FOI Section should be trained within
Department with high volume non-personal requests.
2 weeks of commencing in the FOI Section.
5
Recommendation
Agency response
Assessment of
response
• We are working through final approvals for a new e-Learning package for FOI decision-makers
across the Department. The e-Learning package comprises two modules: an overview of the
Due 8 July 2021
Department’s obligations under the FOI Act; and a more detailed description of how non-personal
FOI requests are processed in the Department. The e-Learning package is expected to be
available to Home Affairs staff later this month.
Response on 20 October 2021:
Recommendation 3 Part a (complete):
• On 19, 20, 27 and 29 May 2021, al FOI section staff processing non-personal Freedom of
Information (FOI) requests attended training sessions on the new Non-personal FOI PI.
• On 28 May, 4 June and 7 June 2021, the FOI section held awareness session for business areas
that frequently received FOI requests regarding the implementation of the non-personal FOI PI.
• By 29 July 2021, al FOI section staff processing non-personal FOI requests declared that they had
read and were implementing the Non-personal FOI PI.
Recommendation 3 Part b (complete):
• On 7 September 2021, the Department released the Freedom of Information (FOI) eLearning
Package. The FOI eLearning Package assists staff to understand their legal requirements when
being asked to provide documents, or decide upon the release of documents under the
Freedom
of Information Act 1982 (FOI Act). This training includes two modules:
Module 1: FOI overview – provides an overview of the Department's obligations under the
FOI Act and an outline of the non-personal FOI request process in the Department.
Module 2: The Department's process for non-personal FOI requests – this module builds on the
information in Module 1 and provides more detail on the Department's process for handling
non-personal FOI requests.
• On 20 and 21 September 2021, the Department facilitated a training session with the Australian
Government for Online Tailored FOI Exemptions and Decision-making course. 20 participants
attended this session. Two more AGS lead training courses wil be held before the end of the year.
• On 28 September 2021, the Department celebrated International Access to Information Day. Our
recognition of this day reinforces the role of transparency and accountability in the Department.
The Department’s Information Champion, Dr Steve Davies, First Assistant Secretary Data Division
and Chief Data Officer was a guest speaker and advocated for being more ‘open by design’. He
also used the opportunity to promote the FOI eLearning Package to all attendees.
6
Recommendation
Agency response
Assessment of
response
• On 30 September 2021, the Department’s Information Champion reviewed the eLearning
Package’s completion status, particularly for high-use / frequently requested business areas. He
personal y sent out tailored messages for decision makers to complete the eLearning Training as
soon as possible.
• As of 8 October 2021,
494 Departmental staff have completed FOI eLearning Package.
4.
Audit of Compliance
Audit reported received 8 March 2022 – endorsed by Audit and Risk Committee on 16 March 2022:
Implemented 8
The Department undertakes an audit of the processing of
March 2022
FOI requests for non-personal information to assess
The key finding is that we ful y implemented recommendations 2 and 3. Two recommendations for future
whether Recommendations 2 and 3 have been
improvements were made:
implemented and operationalised and whether those
- Consider case management system enhancements
actions have been sufficient to address the issues
- Formalise FOI quality management activities.
identified in this CI .
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.
Due 8 October 2021
department-of-hom
e-affairs-ci -report-in
See CII report
:department-of-home-affairs-cii-report-including-secretary-comments.pdf (oaic.gov.au)
7
Appendix B:
Investigation into complaints relating to the Department of Home Affairs’ compliance with statutory
timeframes for processing FOI requests relating to personal information
Date of notice on completion: 25 November 2021
Outcome: The Department did not comply with the statutory processing period.
Implementation of recommendations
Recommendation
Preliminary response to s 86 notice
Subsequent response (implementation)
Assessment of
response
1. The Department prepare and implement an operational
The Department wil finalise
2 November 2022:
Implemented
manual for processing FOI requests for personal
development of its Procedural
The Procedural Instruction:
Processing personal
2 November 2022
information to be approved by the Information
Instruction for processing FOI requests
freedom of information requests (the procedural
Champion
. The operational manual is to include, at a
for personal information. The
instruction) is finalised and is in use. It is modelled on
minimum, the steps that wil be taken to ensure
procedural instruction wil constitute
the non-personal procedural instruction.
compliance with statutory processing requirements.
the ‘operational manual’.
The Department has completed the task it
Consistent with the requirements of the Information
committed to undertake in response to the
Freedom
Publication Scheme, the operational manual should be
of information complaint investigations – Notice on
made publicly available by the Department on its website.
competition.
(Due
28 February 2022)
2. The Department ascertain the additional resources
The Department wil continue to
17 December 2021:
Not implemented;
(human or otherwise) anticipated to be required in order complement the FOI Section’s capacity
The Department wil continue to complement the FOI it is unclear what
to meet statutory timeframes (taking account of the
where it is not detrimental to the
Section's capacity where it is not detrimental to the
additional
improvements through implementing recommendation 1) Department’s other functions to do so.
Department's other functions to do so. Current
resources are
and provide an action plan to meet those requirements. Current strategies include the use of
strategies include the use of overtime, graduate
anticipated to meet
(Due
28 February 2022)
overtime, graduate placements and the placements and the redeployment of staff who are
statutory
redeployment of staff who are
temporarily unable to complete their normal duties.
timeframes and no
temporarily unable to complete their
detailed action plan
normal duties.
11 March 2022:
was provided apart
Since 1 January 2022, the FOI section has
from general
complemented its capacity by:
reporting of
• Supplying work to four staff from other areas
ongoing and
that require alternative work due to COVID-19
upcoming
impacts
initiatives.
• Hosting eight staff completing their graduate
program (a 12 week rotation)
• Developed an agreement with Rehabilitation and
Compensation Management to provide
8
Recommendation
Preliminary response to s 86 notice
Subsequent response (implementation)
Assessment of
response
alternative work to staff unable to compete
normal duties (suitable staff not yet identified)
• Run overtime
• Welcomed three new staff members successful
in a whole of agency EOI process
• Received responses for a limited RFQ for
contractors (labour hire) to assist with preparing
decisions.
Additional y, we are currently exploring ways to fil
vacancies quickly, reducing the amount of time a
position is vacant. This includes participating in
placing staff from a whole of Data Division
recruitment round and exploring merit lists (Home
Affairs and other agencies). If OAIC has any active
merit lists, could you please let Home Affairs know
and we wil ask HR to explore the possibility of using
your processes to fil similar vacancies here. We are
also open to secondment opportunities if OAIC staff
would benefit from a time in an agency setting.
Finding staff in this environment is chal enging - we
are competing for talent with current taskforces on
flood recovery and the responses to Afghanistan. It is
possible staff wil shortly be required to assist with
the Australian response to events in Ukraine as well.
5 September 2022:
We recently implemented some changes to
streamline FOI decision making.
• In July 2022, the Department has begun
using the powers of the Privacy Act to
release personal information at greater
scale. This means we can expect to see the
volumes of FOI requests decrease, as
applicants use this alternative pathway to
obtain personal information.
9
Recommendation
Preliminary response to s 86 notice
Subsequent response (implementation)
Assessment of
response
• We have automated some FOI registration
tasks through the use of Robotic Processing
Automation. This is the first use of Robotic
Processing Automation in the Department.
In a few weeks, my team wil offer an
information session for OAIC staff interested
in learning more about how we are using
technology to improve FOI processing and
decision making.
• The Department restructured its web
content and implemented relevant
recommendations from OAICs review of
disclosure logs.
• The Department has completed SES
consultation on the
Procedural Instruction
processing personal Freedom of Information
requests and it is going through final
clearances. The procedural instruction wil
address OAIC’s recommendation from
Freedom of information complaint
investigations - Notice on Completion.
• I look forward to continuing to engage with
you on matters relating to FOI,
supplementing the positive working
relationship enjoyed by our teams. I would
be keen to meet to discuss the
Department’s innovative approach to the
management of the APS’ largest FOI
caseload.
2 November 2022:
Since 1 January 2022, the FOI section has
complemented its capacity by:
10
link to page 61
Recommendation
Preliminary response to s 86 notice
Subsequent response (implementation)
Assessment of
response
• Supplying work to staff from other areas
that require alternative work due to
COVID-19 impacts
• Hosting graduate program participants
• Developed an agreement with
Rehabilitation and Compensation
Management to provide alternative work to
staff unable to compete normal duties
(suitable staff not yet identified)
• Run overtime
• Used labour hire firms to provide some
additional capacity.
We are now working with a service provider to
provide file support for requests to be finalised under
the Privacy Act. This is designed to release resources
to focus on decision making.
If OAIC has any active merit lists, could you please let
Home Affairs know and we wil ask HR to explore the
possibility of using your processes to fil similar
vacancies here. We are also open to secondment
opportunities if OAIC staff would benefit from a time
in an agency setting.
Finding staff in this environment is chal enging - we
are competing for talent with current taskforces on
visa processing (very significant numbers of new staff
recruited) and national/democratic resilience.
The Department considers this commitment
ongoing.
20 January 20231:
The increased productivity in the personal caseload is
the result of a number of improvements.
1 This is the second improvement related to Recommendation 2 as a result of increased productivity in the personal case load also referred to in Recommendation 1. See Recommendation 3 for
third improvement.
11
Recommendation
Preliminary response to s 86 notice
Subsequent response (implementation)
Assessment of
response
……Secondly, although additional ful time FTE was
not available for FOI given other operational
pressures, creative solutions have boosted the
Department’s capacity short term and al owed us to
focus on resolving the backlog of FOI cases. These
solutions include:
• Approximately 15 contractors that are focussing
on resolving requests to access personal
information. While this approach comes with a
cost and risks, it has al owed delegated
departmental staff to process requests in the FOI
backlog.
• The Department has also utilised staff from
graduate programs, law clerks and staff who are
unable to resume their normal duties into FOI
processing. These staff subsequently take FOI
knowledge back into their next roles in the
organisation.
• Excitingly, the Department is also trial ing
working with a service provider to provide file
support for the personal caseload. It is likely that
this arrangement wil assist with the
management of requests in the future.
We have been successful in securing a limited
amount of departmental funding to improve our
caseload management system to:
• Assist case officers to fol ow our processes by
including in system workflows
• Improve request visibility Reduce administrative
overhead.
We expect the system improvements to be made by
July 2023.
23 March 2023:
On March 6, the Department of Home Affairs
launched a pilot of an administrative access channel
to provide members of the public access to statistical
12
link to page 63 link to page 63
Recommendation
Preliminary response to s 86 notice
Subsequent response (implementation)
Assessment of
response
information and data. You can find more information
about the channel on o
ur website.2 In designing the
channel, we appreciated the resources of OAIC and in
particula
r Administrative access - Home
(oaic.gov.au). This is another example of the
Department’s commitment to openness and helps
provide applicants requesting data the best possible
service.
As this is a pilot, I have a check in point in three
months and the final review at six months. The
experience of OAIC would be valued in the process
and I would appreciate if any complaints about the
pilot received by OAIC could be raised directly with
me as a priority.
20 June 2023:
Regarding the improvements listed in the
Department’s previous correspondence I can provide
the fol owing updates:
• The enhanced procedural instructions and
training packages continue to provide the
benefits as per our correspondence in January
2023
3.
• We continue to use creative solutions to
increase processing capacity where additional
FTE in APS staffing is unavailable.
• In May, we successfully launched a newly
designed online form for applicants to apply for
access or amendments requests, in conjunction
with the first phase of updates to our caseload
management system.
o We are tracking the impact of these
changes and can advise you on the
benefits realised in the coming months
2 Li
nk Data requests (homeaffairs.gov.au)
3 Added to Recommendation 3
13
Recommendation
Preliminary response to s 86 notice
Subsequent response (implementation)
Assessment of
response
In addition to these improvements, we have also
implemented the fol owing:
• A pilot of a specific channel for requests for
statistics under an administrative arrangement,
which wil be reviewed in the new financial year
to confirm if the arrangements wil continue
beyond the pilot phase.
• Since the launch in March 2023, the pilot
data channel has received 253 requests and
finalised 182 requests.
• We have implemented an additional robotic
process automation tool (Foibot Emails) to assist
our officers to triage emails and ensure they are
saved in our filing system.
• The tool is able to read reference numbers
in emails, locate the relevant request in our
caseload management system, alert the
case officer and file the email.
• Since implementation in February, Foibot Emails
has assisted to triage and file over 12,000 emails
in our section mailboxes saving hours of
administrative efforts.
14
Recommendation
Preliminary response to s 86 notice
Subsequent response (implementation)
Assessment of
response
3. The Department:
The Department wil provide the
2 November 2022:
Partially
a. undertake and complete training on the operational necessary training to FOI section staff
implemented; it is
manual for FOI Section staff and other staff (both
and other staff. The Department wil
Staff in the FOI section have been trained in the
unclear whether
decision makers and other staff who assist decision
update its current online learning to
procedural instruction. Staff in business areas
new staff joining
makers) by
28 March 2022
include material related to requests for
participated in the creation of the procedural
the FOI section are
b. ensure that online training in processing FOI
personal information. The online
instruction and it is available to them through the
trained in relation
requests for personal information is available to all
training for FOI requests for personal
intranet and linked to in our Policy Procedures
to the operational
staff of the Department by
28 March 2022
information wil be made mandatory for Control Register and directly from FOI pages.
manual within 2
c. ensure that new staff joining the FOI Section are
those staff who join the FOI Section and Staff have also recently received training in caseload
weeks of
trained in relation to the operational manual within who process requests for personal
management (including quality assurance for
commencing the
2 weeks of commencing in the FOI Section.
information.
personal and non-personal cases), working with
FOI section.
Robotic Process Automation (Foibot) and we are
cross training teams to ensure coverage over
Christmas.
The Department has completed the task it
committed to undertake in response to the
Freedom
of information complaint investigations – Notice on
competition.
4. The Department undertake an audit of the processing of
The Department wil finalise its audit on
2 November 2022:
Not implemented
FOI requests for personal information to assess whether
the processing of FOI requests for
non-
The Department finalised its audit of non-personal
Recommendations 1, 2
and 3
have been implemented
personal information. Any
requests in March 2022 and provided it to the OAIC.
and operationalised and whether those actions have been recommendations that would apply
The Department has also now implemented the two
sufficient to address the issues identified in these
equal y to personal requests as they do
recommendations (which applied equal y to personal
complaints. The audit is to be undertaken by either the
to non-personal requests wil be taken
FOI requests).
Department’s internal auditors or by an external auditor,
to apply to personal requests. The
as determined by the Department. A copy of the audit
Department wil refer the decision on
The Department referred the decision on the need
report should be provided to the OAIC. (Due
30 May
the need for a further audit on the
for a further audit to the Audit Committee in March
2022)
processing of personal requests to its
2022. They did not add an audit of personal FOI
Audit Committee for consideration.
processing to the forward work plan.
FOI section has provided information to the Audit
Committee secretariat to inform their meetings in
April, June and October 2022.
The Department has completed the tasks it
committed to undertake in response to the
Freedom
of information complaint investigations – Notice on
competition.
20 January 2023:
15
Recommendation
Preliminary response to s 86 notice
Subsequent response (implementation)
Assessment of
response
Final y, we have implemented the recommendations
from the department’s internal audit into the non
personal caseload and extended these changes to the
wider FOI caseload. The audit required us to assess
the feasibility of making improvements to our
caseload management system and to create a
caseload management plan. The caseload
management plan includes quality assurance steps
and has clarified the roles across the FOI section and
the wider department.
16
Related HTB: NIL
Inquiry into the operation of Commonwealth Freedom of Information (FOI) laws
Appendix C: Engagement between OAIC and DHA regarding systemic
compliance issues (from January 2021)
Meetings
Date
Attendees
Summary
16 December 2020
Rocel e Ago, Principal Director OAIC
• Discussion about the Department’s
Irene Nicolaou, Director OAIC
implementation of the CII
s47E(d)
, DHA
recommendations
s47E(d)
, DHA
12 April 2021
Elizabeth Hampton, Deputy Commissioner OAIC
• Proposed changes to the Department’s
Rocel e Ago, Principal Director OAIC
processes and implementation of the CI
Paul Pfitzner, Assistant Secretary DHA
recommendations and sought to discuss
matters relating to the CI separately.
30 July 2021
Rocel e Ago, Principal Director OAIC
• Team/governance
Susan McKeag, Assistant Secretary DHA
• CI /complaints
s47E(d)
, DHA
• Action items:
s47E(d)
, DHA
• DHA to provide update on CI
recommendations
12 August 2021
Rocel e Ago, Assistant Commissioner, OAIC
• Telephone conversation to acknowledge
Susan McKeag, Assistant Secretary DHA
receipt of the Department’s progress
update sent to the OAIC via email and
seek a revised CI implementation update
10 February 2022
Rocel e Ago, Assistant Commissioner, OAIC and FOI
• Discussion about the personal cohort
Branch directors
recommendation cases
Steve Biddle, Assistant Secretary, DHA and DHA staff • Request clarification from DHA regard
‘Noted’ rather than ‘accepted’ (because
they couldn’t agree in ful )
• Discuss DHA FOI workloads, statistics and
strategies being implemented or to be
implemented, including feedback and
ideas
• Confirmed finalisation of audit
1 June 2022
Rocel e Ago, Assistant Commissioner, OAIC
• General discussion of initiatives being
Irene Nicolaou, Director OAIC
implemented
Sandra Wavamunno, Director OAIC
6 June 2022
Leo Hardiman PSM KC, former Freedom of
• Introductory meeting
Information Commissioner, OAIC
• Discussion of DHA’s current workload
Marc Ablong, Deputy Secretary, DHA
and strategies that are being
Steve Davies, Chief Data Officer, DHA
implemented or to be implemented
21 October 2022
Leo Hardiman PSM KC, former Freedom of
• Update on caseload and innovations
Information Commissioner, OAIC
Rocel e Ago, Assistant Commissioner, OAIC
Steve Davies, Chief Data Officer, DHA
Steve Biddle, Assistant Secretary, DHA
20 December 2022
Leo Hardiman PSM KC, former Freedom of
• Introductory meeting
Information Commissioner, OAIC
• Discussion of DHA’s current workload
Pip De Veau, former General Counsel, DHA
and strategies that are being
implemented or to be implemented
Correspondence
Date
Correspondence from/to
Summary
6 January 2021
Letter from Michael Pezzul o Letter from the Department acknowledging CII report, accepted, and
AO, Secretary of DHA to
confirmed wil implement al recommendations made in the report.
Commissioner, Angelene
Provided comments to each of the 4 recommendations made and
Falk, OAIC
noted improvements underway for FOI.
28 April 2021
Email from Irene Nicolaou
Email to the Department referring to a telephone conversation with
Director, OAIC to s47E(d)
Rocelle Ago, OAIC, of the action taken by the Department to
, DHA
implement the Commissioner’s recommendations and seeking an
update on the Department’s progress in implementing
recommendation 2 of the CI which was due to be implemented by 8
April 2021. The email also refers to a teleconference on 16 December
2020 between the OAIC and the Department where the
implementation of the recommendations was discussed.
30 April 2021
Email from Paul Pfitzner,
Email from the Department acknowledging the OAIC’s email and
DHA to Irene Nicolaou
confirmed that a substantive response would be provided by the
Director, OAIC
deadline and updated contact details for the Department.
3 May 2021
Email from Paul Pfitzner,
Email from the Department providing the OAIC with a copy of the
DHA to Irene Nicolaou,
Procedural Instruction and noted that in the Department’s view, this
Director OAIC and Rocel e
satisfied recommendation 2 of the CI . The Department also provided
Ago, Assistant Commissioner an update in relation to recommendation 3 of the CI , confirming they
OAIC
had commenced development of an e-learning training package
aligned with the Procedural Instruction with a view to commencing
staff training from July 2021.
4 May 2021
Email from Irene Nicolaou,
Email to the Department acknowledging Paul Pfitzner email’s and
Director OAIC to Paul
noted that the OAIC would contact the Department if further
Pfitzner, DHA
information was needed.
4 May 2021
Email from Paul Pfitzner,
Email from the Department providing a revised Procedural Instruction
DHA to Irene Nicolaou,
resent to the OAIC on 4 May 2021 due to a date error in the document.
Director OAIC
4 May 2021
Email from Irene Nicolaou,
Email to the Department acknowledging email and confirming that the
Director OAIC to Paul
revised version of the Procedural Instruction has been noted on the
Pfitzner, DHA
OAIC’s file.
3 August 2021
Email from Susan McKeag,
Email from the Department providing the OAIC with an update on
Assistant Secretary DHA to
implementing the CI recommendations. The Department:
Rocel e Ago, Assistant
• reconfirmed that it had implemented recommendations 1
Commissioner OAIC
and 2
• made significant progress in implementing recommendation
3 which included:
o delivering training on the new Procedural
Instruction, and
o working on final approval of an e-learn package
for FOI decision makers across the Department.
• on track to meet recommendation 4 and the audit plan for
2021-2022 included an audit of its compliance with the FOI
Act in relation to non-personal information which was
scheduled for late 2021 or early 2022.
20 October 2021
Email from Steve Biddle,
Email from the Department providing an update on the actions taken
Assistant Secretary DHA to
against recommendations 3 and 4 in CII as follows:
Rocel e Ago, Assistant
• recommendation 3(a) – complete
Commissioner OAIC
• recommendation 3(b) – complete
• recommendation 4 – ongoing
21 October 2021
Email from Rocel e Ago,
Email to the Department acknowledging the Assistant Secretary’s
Assistant Commissioner
email and noted that the OAIC would contact the Department if
OAIC to Steve Biddle,
further information was needed.
Assistant Secretary DHA
25 November 2021 Letter from Commissioner
Letter from Commissioner Falk to the Department containing a s 86
Falk, OAIC to, Michael
Notice on completion to DHA for the 17 personal complaint cohort
Pezzul o AO, Secretary DHA
making 4 recommendations under s 88 of the FOI Act.
18
Date
Correspondence from/to
Summary
14 December 2021
Letter from Michael Pezzul o Letter from the Department acknowledging the s 86 Notice on
AO, Secretary of DHA to
completion and notes recommendations made. Referred to advice
Commissioner, Angelene
provided to OAIC in June, August and September 2021 of measures
Falk, OAIC
underway to improve statutory compliance. Confirmed
implementation of a number of recommendations made in CI
investigation as at June 2021.
22 December 2021
Email from Irene Nicolaou,
Email sent to the Department reconfirming both personal and CII
Director OAIC to s47E(d)
recommendation outcomes and confirmation that a response to
, DHA
recommendation 4 for the CII investigation would be provided to the
OAIC by the due date including information about the OAIC publishing
the CI outcomes on the FOI Investigations Outcomes summary table
on the OAIC’s website.
23 December 2021 Email from s47E(d)
,
Email from the Department confirming it would provide key contacts
DHA to Irene Nicolaou,
and regular progress updates to the OAIC in relation the
Director OAIC
recommendations pertaining to both the personal and CII
investigation, specifical y recommendation 4 of the CI .
17 January 2022
Email from Irene Nicolaou,
Email sent to the Department seeking a progress update in relation to
Director OAIC to s47E(d)
recommendation 4 of the CI .
, DHA
17 January 2022
Email from s47E(d)
,
Email from the Department advising that the audit has been
DHA to Irene Nicolaou,
completed and the report was going through the clearance process
Director OAIC
and a copy wil be provided to the OAIC once clearance has been
completed. The Department noted that the report would not be
endorsed by the Audit Committee until March 2022.
27 January 2022
Email from s47E(d)
,
Email from the Department reconfirming the audit has been
DHA to Rocel e Ago,
completed and report is going through the Executive clearance process
Assistant Commissioner
and a copy cannot be provided to the OAIC by 31 January 2022. The
OAIC and Irene Nicolaou,
Department noted that it would provide an embargoes report to the
Director OAIC
OAIC as soon as it could (likely mid-February 2022) and it would be
endorsed by the Audit Committee in March 2022.
1 February 2022
Email from Irene Nicolaou,
Email to the Department acknowledging the update and proposed
Director OAIC to s47E(d)
timeline and provided information on the OAIC’s updated publication
, DHA
of the Outcomes of the investigations summary table on the OAIC’s
website.
4 February 2022
Phone cal from s47E(d)
The OAIC received a telephone cal from the Department noting that it
, DHA to Irene
did not object to the release of the s 86 Notices but concerned that the
Nicolaou, Director OAIC
release of the document does not coincide with the update of the
Outcomes of the investigations summary table on the OAIC’s website.
DHA noted that in relation to the personal cohort investigation, it does
not ‘agree’ to the recommendations rather, only ‘noted’ them and
agreed to take action in relation to them and this is how it is to be
recorded on the Outcomes of the investigations summary table.
11 February 2022
Email from Irene Nicolaou,
Email sent to the Department confirming the OAIC is looking forward
Director OAIC to s47E(d)
to receiving a copy of the embargoed audit report by mid-February
, DHA
2022 and a final copy of the report in March 2022.
8 March 2022
Email from Irene Nicolaou,
Email sent to the Department to clarify whether it wil provide an
Director OAIC to s47E(d)
embargoed copy of audit in relation to Recommendation 4 for CI and
, DHA
if the Department wil provide further response in relation to
implementation of recommendations 1 and 2 for the personal cohort
investigation.
8 March 2022
Email from s47E(d)
,
Email from the Department providing a copy of the audit report in
DHA to Rocel e Ago,
response to recommendation 4 of the CI and noted key findings that:
Assistant Commissioner
• the Department ful y implemented recommendations 2 and 3,
OAIC and Irene Nicolaou,
and
Director OAIC
• 2 recommendations for future improvement
o Consider case management system enhancements,
and
o Formalise FOI quality management activities
The Department considered that al recommendations from the CI
have been implemented.
19
Date
Correspondence from/to
Summary
9 March 2022
Email from Irene Nicolaou,
Email sent to the Department acknowledging the embargoed copy of
Director OAIC to s47E(d)
the audit report in relation to recommendation 4 of the CI and request
, DHA
for a copy of the final report once endorsed by the Audit Committee.
10 March 2022
Email from s47E(d) ,
Email from the Department on the development of a draft Procedural
DHA to Irene Nicolaou,
Instruction for processing FOI requests for personal information and
Director OAIC
measures put in place as of 1 January 2022 to continue complimenting
the FOI’s Section capacity.
11 March 2022
Email from Irene Nicolaou,
Email to the Department acknowledging status update email of 11
OAIC to s47E(d) , DHA
March 2022.
16 March 2022
Email from Irene Nicolaou,
Email from the Department confirming the audit report in relation to
Director OAIC to s47E(d)
recommendation 4 of the CI , has been endorsed by the Audit
DHA
Committee.
31 May 2022
Email from Irene Nicolaou,
Email to the Department confirming agenda for schedule meeting on 1
Director OAIC to Alice
June 2022; noted Department response to recommendation 4 of
McLean, DHA
personal cohort investigation is outstanding; and the Department’s
current position to recommendations, particularly recommendations 3
and 4 given Department has previously noted recommendations and
not advised it accepts the recommendations.
31 May 2022
Email from s47E(d) ,
Email from the Department acknowledging the OAIC’s email of same
DHA to Irene Nicolaou,
date and confirmed that it very happy to talk through its progress and
Director OAIC
improvements they’re making.
31 May 2022
Email from Irene Nicolaou,
Email from the OAIC acknowledging the Department’s
Director OAIC to s47E(d)
acknowledgement email.
, DHA
26 August 2022
Email from Irene Nicolaou,
Email sent to the Department requesting update on implementation of
Director OAIC to s47E(d)
al personal cohort recommendations by 2 September 2022
, DHA
5 September 2022
Letter from Steve Biddle,
Letter from the Department providing an update on chal enges faced
Assistant Secretary DHA to
by the Department and changes implemented to streamline FOI
former FOI Commissioner,
decision making (letter is undated but sent via email on 5 September
Hardiman KC PSM, OAIC
2022).
20 September 2022 Email from Rocel e Ago,
Email to the Department acknowledging receipt of its letter sent on 5
Assistant Commissioner
September 2022 to the former FOI Commissioner KC PSM, advising
OAIC to Steve Biddle,
that the OAIC wil be writing to the Department about its compliance
Assistant Secretary DHA
with statutory processing timeframes for FOI requests, including in
relation to the number of deemed access refusal applications received
by the OAIC and that the OAIC seeks an update in relation to the
Department’s implementation, or response to, the recommendations
made in the personal cohort investigations.
25 October 2022
Letter to Secretary Pezzul o
Department’s non-compliance with statutory timeframes for
AO from Commissioners
processing FOI requests and the impact of this non-compliance on the
Hardiman and Falk
IC review process (see
Appendix C - Attachment 9D).
2 November 2022
Email from Steve Biddle,
Email from the Department providing an update on the
Assistant Secretary DHA to
recommendations made in relation to the personal cohort
Rocel e Ago, Assistant
investigations and CI investigation and its subsequent actions (see
Commissioner OAIC
Appendix B for recommendation-specific responses).
7 November 2022
Letter from Pip de Veau,
Letter from the Department providing an update on number of
former General Counsel DHA matters finalised and measures implemented since January 2022 to
to Commissioners
improve the timeliness of FOI requests.
10 November 2022
Email from Rocel e Ago,
Email to the Department acknowledging receipt of the Department’s
Assistant Commissioner
letter of 5 September 2022.
OAIC to Steve Biddle,
Assistant Secretary DHA
11 January 2023
Letter from Steve Biddle,
Letter from the Department requesting the OAIC consider delaying
Assistant Secretary DHA to
implementation of section 22 reporting interpretation for FOI statistics
Rocel e Ago, Assistant
to al ow time for the Department to meet with other agencies and
Commissioner OAIC
identify operation impacts of s 22 interpretation, including manual
interrogation of cases that may be required to assist with reporting.
20 January 2023
Letter from Pip de Veau
Letter providing an update on the Department’s key strategies
former General Counsel,
implemented and current caseload. The Department noted its aim to
20
Date
Correspondence from/to
Summary
DHAto Commissioner Falk,
reach system improvements by July 2023 and manageable on hand
OAIC
caseload by November 2023.
23 March 2023
Email from Steve Biddle,
Update on compliance with statutory timeframes for FOI requests and
Assistant Secretary DHA to
launch of administrative access pilot for statistical information and
Rocel e Ago, Assistant
data via an information channel. Request for OAIC feedback. The
Commissioner OAIC
Department also noted that since January 2022, the number of FOI
requests on hand continued to decreased and in 2022-23 financial year
(end of February 2023), 12,507 requests had been finalised compared
to 7,355 requests in the same period in the 2021-22 financial year.
23 March 2023
Email from Rocelle Ago,
Letter to the Department in response to the email of 23 March 2023
Assistant Commissioner
setting out:
OAIC to Steve Biddle,
• The OAIC wil request specific information from the
Assistant Secretary DHA
Department, including the number of open requests on hand.
• Feedback regarding pilot, particularly relating to the
imposition of charges for data requests and request to
discuss.
8 June 2023
Letter from Commissioner
Letter to the Department requesting status update on strategies
Falk, OAIC to Pip de Veau,
referred to in DHA letter of 20 January 2022 and their impact on the
former General Counsel DHA Department’s case loads; details for any further strategies or initiatives
the Department has undertaken to reduce its caseloads and their
impact by November 2023; request quarterly statistics of personal and
non-personal cohort FOI requests received, finalised, on hand and
overdue to be provided at the time Department’s quarterly FOI
statistics are due.
20 June 2023
Letter from Steve Biddle,
Letter from the Department provided an update on DHA’s strategies
Assistant Secretary DHA to
referred to in prior correspondence and impact on caseloads, including
Commissioner Falk, OAIC
further strategies implemented to reduce its caseloads and quarterly
statistics on FOI requests. The Department confirmed it anticipates a
manageable caseload by November 2023 if its current productivity
levels are sustained. The Department also provided FOI stats for
Quarter 3 (1 January – 31 March 2023) plus performance stats to
provide a ful er picture of its activities in this space.
4 August 2023
Letter from Steve Biddle,
Letter from the Department provided FOI stats for Quarter 4 (1 April –
DHA to Commissioner Falk,
30 June 2023) in response to Commissioner Falk’s letter of 8 June
OAIC and Rocel e Ago,
2023. The Department also provided further performance stats to
Assistant Commissioner
provide a ful er picture of the Department’s activities and advised it
OAIC
feels confident that, if current productivity levels are sustained it can
anticipate a manageable caseload by November 2023 al owing for
improvements with statutory timeframes.
21 August 2023
Email from Steve Biddle,
Email response to query regarding reasons as to differences in data
DHA to Rocel e Ago, OAIC
compared to previous years:
The Department has used the OAIC’s guidance on administrative access
to introduce an administrative release process under the Privacy Act.
The transition to the process is the primary reason for the differences to
the 2022-23 financial year data compared to previous years. This new
approach, amongst other business improvements, aids the Department
to reduce the large on hand personal caseload allowing for future
improvements to timeliness as the caseload becomes less aged.
Letter to Secretary
Home Affairs.pdf
See Attachment 9D: Letter to Secretary Pezzulo AO: Department’s non-compliance with statutory timeframes for
processing FOI requests and the impact of this non-compliance on the IC review process dated 25 October 2022.
21
Appendix D: Correspondence from Commissioner Falk to the
Department requesting FOI statistics
22
23
24
25
26
27
28
29
Appendix E: Department quarterly reports
Department responses
Links
21 June 2023
See Attachment 9B
Letter -
Commissioner Falk f
4 August 2023
See Attachment 9C
Letter -
Commissioner Falk f
30
Appendix F: the Department’s compliance with statutory timeframes
for processing FOI requests in relation to both personal and non-
personal information
Decided
Decided in time
% in time
Personal Other
Total
Personal Other
Total
Personal Other
Total
Annual
FY
2018-19
14944
734
15678
11307
320
11627
75.6
43.5
74.1
2019-20
13258
1518 14776
9203
558
9761
69.4
36.7
66
2020-21
12066
1792
13858
7374
1165
8539
61.11 65.01
61.6
2021-22
9737
1466
11203
3999
999
4998
41.07 68.14
44.6
2022-23
5202
1086
6288
1671
732
2403
32.12
67.4
38.2
Quarterly
Q1
2018-19
4005
127
4132
3744
46
3790
93.4
7.65
91.7
Q1
2019-20
3782
204
3986
3197
110
3307
84.5
53.9
82.9
Q1
2020-21
4284
463
4747
2563
254
2817
59.8
54.8
59.4
Q1
2021-22
2142
489
2631
1031
342
1373
48.1
69.9
52.2
Q1
2022-23
1467
294
1761
551
238
789
37.5
80.9
44.8
Q2
2018-19
3377
196
3573
2597
82
2679
76.9
41.8
75.0
Q2
2019-20
3671
365
4036
2743
92
2835
74.7
25.2
70.2
Q2
2020-21
3063
424
3487
1791
318
2109
58.4
75
60.5
Q2
2021-22
1999
410
2409
778
290
1068
38.9
70.7
44.3
Q2
2022-23
1270
329
1599
390
240
630
30.7
72.9
39.4
Q3
2018-19
3347
176
3523
2013
80
2093
60.1
45.4
59.4
Q3
2019-20
2943
396
3339
1709
136
1845
58.0
34.3
55.2
Q3
2020-21
2504
416
2920
1621
287
1908
64.7
68.9
65.3
Q3
2021-22
2679
290
2969
746
187
933
27.8
64.5
31.4
31
Q3
2022-23
1102
297
1399
259
195
454
23.5
65.6
32.4
Q4
2018-19
4215
235
4450
2953
112
3065
70.0
47.6
68.9
Q4
2019-20
2862
553
3415
1554
220
1774
54.29
39.8
51.9
Q4
2020-21
2215
489
2704
1399
306
1705
63.1
62.6
63.0
Q4
2021-22
2917
277
3194
1444
180
1624
49.5
65.0
50.8
Q4
2022-23
1363
166
1529
471
59
530
34.5
35.5
34.6
32
s47E(d)
OFFICIAL
Angelene Falk
Australian Information Commissioner
Officer of the Australian Information Commissioner
By email:
xxxxxxxx.xxxx@xxxx.xxx.xx Cc:
xxxxxxx.xxx@xxxx.xxx.xx
Dear Commissioner Falk
As requested in your correspondence of 8 June, I write to provide the data you requested for Quarter 4 in
line with the data previously provided in Quarter (see Attachment B).
As per my correspondence on 21 June, I am concerned the statistics provided in this format may be
distorted by the age of the backlog and may not be fully reflective of our improving performance. As such,
I’ve provided further data to provide a fuller picture of the Department’s activities in this space (Attachment
A).
I can also confirm the Department submitted the return for Q4 in to the OAIC portal on time for normal
statistical reporting and the annual data is being compiled currently to be submitted in to the portal.
I can further advise that, for the 2022-23 financial year, we have finalised 20,949 requests to access or
amend information, representing a 52.6 per cent increase in finalised request compared to last financial year.
Over the financial year, we have released almost 3 million pages of information.
This graph depicts the reduction in on hand requests and the number of overdue requests.
Home Affairs FOI Onhand
7000
6000
5000
4000
3000
2000
1000
0
Jul-22
Aug-22 Sep-22 Oct-22 Nov-22 Dec-22 Jan-23 Feb-23 Mar-23 Apr-23 May-23 Jun-23
Onhand total
Overdue onhand total
At the beginning of this financial year (1 July 2022) there were 6,636 requests on hand (5,665 overdue) and
at the end of the year this number was 2,358 (1,499 overdue), representing a 73.5 per cent reduction in the
number of overdue requests on hand.
I continue to feel confident that, if current productivity levels are sustained we can anticipate a manageable
caseload by November 2023 allowing for improvements to the compliance with statutory timeframes.
OFFICIAL
6 Chan Street Belconnen ACT 2617
PO Box 25 Belconnen ACT 2616 • Telephone: 02 6264 1111 • Fax: 02 6225 6970 • www.homeaffairs.gov.au
OFFICIAL
As per my previous correspondence our business improvement projects continue to progress well and I look
forward to sharing our further insights in to our caseload with you in this financial year.
Yours sincerely
s47E(d)
Steven Biddle
Assistant Secretary,
Privacy, FOI and Records Management
4 August 2023
Attachment A: Home Affairs performance statistics
Attachment B: OAIC Requested statistics
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OFFICIAL
link to page 90 link to page 90
OFFICIAL
Attachment A: Home Affairs performance statistics
FY 2021-2022
FY2022-2023
Requests received
Total
15,893
16,864
Personal FOI
12,799
11,334
Non Personal FOI
1,853
1,761
Privacy Act (registered)
48
2,641
Amendments
1,193
1,128
Requests finalised
Total
13,905
20,949
Personal FOI
10,679
*15,329
Non Personal FOI
1,975
1,898
Privacy Act (registered)
85
2,579
Amendments
1,166
1,143
*This figure includes 9,390 FOI withdrawals where information was provided under the
Privacy Act in consultation with the applicant.
Finalisations made in-time
Total
50%
48%
Personal
FOI1
42%
34%
Non Personal FOI
71%
78%
Privacy Act (registered)
Not available
89%
Amendments
91%
86%
1 These numbers are inclusive of backlog cases and this is impacting the proportion done in time as old
cases are finalized.
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OFFICIAL
OFFICIAL
Attachment B: OAIC Requested statistics
Note: These figures include only FOI access requests, so excludes amendment requests and
requests that were registered and processed under the Privacy Act.
TABLE 1: Number of FOI requests received in quarterly periods
Percentage
of FOI
Percentage
Total # of FOI
requests
Total # of FOI
of requests Total # of
requests for
for
requests for
for non-
FOI
personal
personal
non-personal
personal
requests
information
information information
information received
Quarter 3
1 January - 31
March
3,121
88.35%
451
11.65%
3,572
Due 21 April
2023
Quarter 4
1 April – 30
2809
94.80%
154
5.20%
2,963
June Due 21
July 2023
Each percentage was calculated as a percentage of the total received for example
the percentage of requests for personal information received is expressed as a percentage of the total received.
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OFFICIAL
OFFICIAL
TABLE 2: Number of FOI requests finalised within statutory processing times in quarterly periods
Percentage
Percentage
of FOI
of FOI
Total # of FOI
requests
Total # of FOI
requests
requests for
for
requests for
for non-
Total # of
personal
personal
non-personal
personal
FOI
information
information information
information requests
finalised
finalised
finalised
finalised
finalised
Quarter 3
1 January - 31
March
1,313
78.91%
351
21.09%
1,664
Due 21 April
2023
Quarter 4
1 April – 30
1,679
92.87%
129
7.13%
1808
June Due 21
July 2023
These figures are the total finalised within statutory processing times not total finalised.
Each percentage was calculated as a percentage of the total finalised in time, for example
the percentage of requests for personal information finalised in time is expressed as a percentage
of the total finalised in time.
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OFFICIAL
OFFICIAL
TABLE 3: Number of FOI requests on hand in quarterly periods
Total # of
Percentage Total # of
Percentage Total
FOI
of FOI
FOI
of requests number of
requests
requests
requests
for non-
FOI
for
for
for non-
personal
requests on
personal on personal
personal on requests on hand
hand
requests on hand
hand
hand
Quarter 3 Within
908
89.68%
116
10.32%
1,024
1 January timeframe
- 31
Up to 30
March
days over
Due 21
applicable
420
89.87%
48
10.13%
468
April 2023 statutory
timeframe
31 - 60 days
over
applicable
518
98.30%
9
1.70%
527
statutory
timeframe
61 - 90 days
over
applicable
463
99.78%
1
0.22%
464
statutory
timeframe
More than
90 days
over
applicable
1,103
99.73%
3
0.27%
1,106
statutory
timeframe
Quarter 4
Within
1 April –
timeframe
735
92.45%
60
7.55%
795
30 June
Up to 30
Due 21
days over
July 2023
applicable
275
96.49%
10
3.51%
285
statutory
timeframe
31 - 60 days
over
applicable
133
95.00%
7
5.00%
140
statutory
timeframe
61 - 90 days
over
applicable
218
99.09%
2
0.91%
220
statutory
timeframe
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OFFICIAL
OFFICIAL
More than
90 days
over
applicable
841
99.88%
1
0.12%
842
statutory
timeframe
Each percentage was calculated as a percentage of the total on hand in the age category,
for example the percentage of requests for personal information on hand is expressed as
a percentage of the total on hand of that age.
TABLE 4: Number of FOI requests overdue and not finalised within statutory processing times in quarterly periods
Percentage
Percentage
of requests Total # of
of requests
Total # of requests for
requests for non-
for non-
Total # of
for personal
personal
personal
personal
FOI
information
information information
information requests
overdue
overdue
overdue
overdue
overdue
Quarter 3
1 January -
31 March
2,504
97.65%
61
2.37%
2,565
Due 21
April 2023
Quarter 4
1 April – 30
June Due
1,467
98.66%
20
1.34%
1,487
21 July
2023
Each percentage was calculated as a percentage of the total overdue for example the percentage
of requests for personal information overdue is expressed as a percentage of the total overdue.
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OFFICIAL
Our reference:
D2022/019475
Mr Michael Pezzullo AO
Secretary
Department of Home Affairs
By email: xxxxxxx.xxxxxxxx@xxxxxxxxxxx.xxx.xx
cc: s47E(d) @homeaffairs.gov.au
xxxxxx.xxxxxx@xxxxxxxxxxx.xxx.xx
xxxxx.xxxxxx@xxxxxxxxxxx.xxx.xx
xxx.xxxxxxx@xxxxxxxxxxx.xxx.xx
Non-compliance with statutory timeframes under the
Freedom of Information Act 1982
Dear Secretary Pezzul o,
We are writing to provide you with information about your Department’s non-compliance with
statutory timeframes for processing FOI requests and the impact of this non-compliance on
the Information Commissioner (IC) review process. We request your attention to resolving this
non-compliance as a matter of priority. These issues have been discussed in recent meetings
of your SES staff with the Freedom of Information Commissioner.
The annual FOI statistics reported by the Department for the past two financial years show a
significant decline in compliance with statutory processing timeframes for FOI requests:
• The Department processed 45% of FOI requests within the applicable statutory timeframe
in 2021-22 compared with 62% in 2020-21. While there was some improvement in
processing requests relating to non-personal information within time (68% in 2021-22
compared with 65% in 2020-21), the large number of requests relating to personal
information which were not processed within time has resulted in this overall decline.
• The Department decided 41% of FOI requests involving personal information within
statutory timeframes in 2021-22 compared with 61% in 2020–21.
• The percentage of FOI requests decided by the Department more than 90 days after the
expiry of the statutory processing period increased from 12% in 2020-21 to 19% in 2021-22.
The Department’s failure to meet applicable statutory decision-making timeframes has
resulted in a significant and ongoing increase in applications for IC review of deemed access
refusal decisions involving the Department:
• In 2021-22, we received 1,022 IC review applications in which the Department was the
respondent.
• Of these, 885, or 87%, involved deemed access refusal decisions attributable to the
Department.
We are currently receiving an average of 24 applications per week for IC review of deemed
access refusal decisions attributable to the Department. We are having to devote our limited
resources to managing these applications as part of our broader process for the triage and
early resolution of IC review applications and are concerned that the volume is set to increase.
We are also concerned that access to information is being delayed for applicants. In the
majority of cases following our intervention, the Department is providing full or partial access
to the documents requested by an applicant.
We understand that the Department currently has close to 5,000 overdue FOI requests for
personal information on hand indicating a continuing, and possibly increasing, inflow of IC
review applications relating to the Department’s deemed access refusal decisions.
We have implemented a process to encourage the Department to make prompt decisions in
relation to access requests which are the subject of deemed refusal decisions and subsequent
IC review applications. We remain open to discussing with officers of the Department ways in
which compliance with timeframes, and reduction of IC review applications relating to deemed
access refusal decisions, can be achieved.
However, in the interests of the Department’s compliance with its statutory obligations and
the efficient administration of the Commonwealth FOI system more broadly, we request your
attention to resolving the Department’s non-compliance with applicable statutory timeframes
as a matter of priority.
Angelene Falk
Leo Hardiman
Australian Information Commissioner and
Freedom of Information Commissioner PSM KC
Privacy Commissioner
12 September 2023
12 September 2023
Related HTB: NIL
Inquiry into the operation of Commonwealth Freedom of Information (FOI) laws
COMMISSIONER BRIEF Number 10
FOI - Change of government and official documents of a
Minister
• Fol owing the May 2022 election, the OAIC has been progressing a cohort of 48
IC reviews impacted by the change of government (‘change of government
cohort’).
• In these IC reviews, there has been a change in Minister in the course of the IC
review. The new Minister from a different government has become the
respondent.
• Of the 48 IC reviews, 47 have been resolved and 1 remains open.
• The Australian Information Commissioner’s decision in
Rex Patrick and
Attorney-General (Freedom of information) [2023] AICmr 9 (28 February 2023),
which concerns an IC review in the context of a change of government, is
currently the subject of Federal Court proceedings in
Rex Lyall Patrick v Attorney
General of the Commonwealth of Australia (SAD40/2023) (Patrick Federal Court
proceeding).
• The remaining IC review wil likely proceed to an IC decision under s 55K of the
FOI Act once the outcome of the abovementioned Patrick Federal Court
proceeding is known.
• The OAIC has received enquiries raising the issue of statistical reporting under
the
Freedom of Information Act 1982 (FOI Act) by ministerial offices concerning
Freedom of Information (FOI) requests made to former Ministers.
Key Points
• Fol owing the May 2022 election, the OAIC has been progressing a change of
government cohort where there has been a change in ministerial office holder
in the course of the IC review, and the new Minister (from a different
government) has become the respondent.
• The OAIC’s long established position where there has been a change of
government is that for the purposes of an IC review:
o an IC review application does not automatical y cease when the
individual who holds a ministerial office changes (whether the change
occurs by way of machinery of government change within the term of
link to page 98
Related HTB: NIL
Inquiry into the operation of Commonwealth Freedom of Information (FOI) laws
government or, alternatively, as a result of a change of government
fol owing an election)
o if any relevant document is not in the possession of the new Minister,
then it is no longer an ‘official document of a Minister’ (s 4(1) of the
FOI Act) to which the mandatory access rule in s 11A(3) applies
o any relevant document in the possession of the Information
Commissioner is not an ‘official document of a Minister’ to which the
mandatory access rule in s 11A(3) applies. The FOI Act places
restrictions on what the Information Commissioner may do with the
copy of the relevant document they hold and the Act does not make
provision for, or otherwise contemplate, the unilateral transfer by the
Information Commissioner of possession of any relevant document to
the current Minister,
1 and
o the new Minister is not required to provide access to any relevant
document.
• The Australian Information Commissioner considered this issue in
Rex Patrick
and Attorney-General (Freedom of information) [2023] AICmr 9 (28 February
2023), which involved a request for a letter of advice from the former Attorney-
General to the former Prime Minister regarding the Auditor-General’s report
into the administration of the Community Sport Infrastructure Grant Program.
The Information Commissioner found that the current Attorney-General was
not in possession of the document at issue and that for the purpose of the IC
review, any relevant document is no longer ‘an official document of a Minister’
to which the mandatory access rule under s 11A(3) of the FOI Act applies. This
Information Commissioner decision is the subject of the Patrick Federal Court
proceeding.
1 See MR20/00019 also, ss 55L and 55T of the FOI Act.
Related HTB: NIL
Inquiry into the operation of Commonwealth Freedom of Information (FOI) laws
• The remaining IC review is currently on hold pending the outcome of the
abovementioned Patrick Federal Court proceeding.
• The OAIC has received enquiries raising the issue of statistical reporting under
the FOI Act by ministerial offices concerning FOI requests made to former
Ministers. The OAIC’s current position on this issue is that consistent with the
communication and published guidance, the current position wil be maintained
pending the decision in the Patrick Federal Court proceeding.
IC reviews - summary
• Of the 48 IC reviews in the change of government cohort:
o 47 IC reviews have been finalised, and
o 1 IC review is currently on hold pending the outcome of the
abovementioned Patrick Federal Court proceeding.
• 1 IC decision was made by the Australian Information Commissioner under
s 55K of the FOI Act:
o
Rex Patrick and Attorney-General (Freedom of information) [2023]
AICmr 9 (28 February 2023)
• 5 IC decisions were made by the former Freedom of Information Commissioner
Leo Hardiman KC PSM under s 55K of the FOI Act:
o
‘ACY’ and Attorney-General (Freedom of information) [2023] AICmr 7 (22
February 2023)
o
Paul Farrel and Prime Minister of Australia (Freedom of information)
[2023] AICmr 32 (11 May 2023)
o
Paul Farrel and Prime Minister of Australia (No. 2) (Freedom of
information) [2023] AICmr 33 (11 May 2023)
o
'ADK' and the Treasurer (Freedom of Information) [2023] AICmr 35 (17
May 2023)
Related HTB: NIL
Inquiry into the operation of Commonwealth Freedom of Information (FOI) laws
o
'ADL' and Attorney-General (Freedom of Information) [2023] AICmr 36
(17 May 2023)
• In these IC decisions, the respective Commissioners varied the Ministers’
decisions on the basis that:
o the documents at issue are not in the possession of the current Minister,
either in an ordinary sense or in the deemed sense referred to in the
definition of ‘official document of a Minister or official document of the
Minister’ in s 4(1) of the FOI Act
o as the current Minister does not have possession of the documents at
issue, any documents relevant to the IC review, to the extent they exist,
are no longer ‘official documents of a Minister’, and
o concluded that the mandatory access rule in s 11A(3) of the FOI Act does
not apply and the current Minister is not required to provide access to
the documents at issue.
IC reviews – summary table
IC reviews – finalised
Total IC reviews
IC review withdrawn by applicant
31
IC declined to undertake/continue to undertake IC review under
s 54W(a)(i) of the FOI Act
10
IC Decisions made under s 55K of the FOI Act
6
Total finalised
47
IC reviews - open
On hold pending the outcome of the Patrick Federal Court proceeding
1
Total open
1
Total IC reviews
48
Related HTB: NIL
Inquiry into the operation of Commonwealth Freedom of Information (FOI) laws
Impact of a change of government on FOI statistical reporting
• The OAIC has received requests in relation to the OAIC’s requirement that
ministerial offices report statistics on requests made to former governments.
These requests were asking the OAIC to reconsider its position about reporting
FOI statistics in this context.
• Some agencies’ are of the view that a current Minister does not have an
obligation to report a former Minister’s FOI request on the basis that a
document of a former Minister is not considered ‘an official document of a
Minister’ (s 4(1) of the FOI Act).
• The OAIC’s position is that FOI requests are attached to the Ministerial title, not
to the individual holding that title, and the OAIC’s current guidance in the FOI
Stats Guide should be maintained, ensuring consistency in approach across
statistical returns, allowing for appropriate benchmarking across historical
datasets see: FOI Stats guide and FOI Guidelines at [2.52].
• The Information Contact Officers Network (ICON) alert dated 21 June 2023
acknowledged questions about how Minister’s FOI statistics are reported
fol owing a change of government and advised that while the OAIC is actively
considering these issues, agencies should continue to submit FOI statistical
reports based on the guidance set out in the FOI Stats guide. The FOI statistics
database provides a separate ‘Comments’ section where relevant commentary
can also be included. This section is published, along with the raw data
provided, on the FOI Statistics page on data.gov.au.
• The OAIC wil have regard to the decision of the Federal Court in the Patrick
Federal Court proceeding once handed down and if required will revise its FOI
Stats Guide as well as any instructions to agencies.
Version: 1
Cleared by: Rocel e Ago
Action officer: Jackie Scolyer
Current at: 9/08/23
Phone number: (02) 9942 4205
Action officer number: (02) 9246 0585
Related HTB: NIL
Inquiry into the operation of Commonwealth Freedom of Information (FOI) laws
COMMISSIONER BRIEF
Number 11
FOI Monitoring, Guidance, Engagement and Information Publication
Scheme
• The OAIC monitors agencies’ compliance with the FOI Act, particularly compliance with
statutory timeframes.
• The OAIC engages widely with information access practitioners across Australia and
overseas.
• Current areas of focus include:
o review of the Information Publication Scheme (IPS) and agencies compliance with
the IPS – conducted every 5 years (s 8F and s 9 of the FOI Act).
o ensuring proactive publication of government held information and encouraging
practices that are ‘open by design’
o producing and revising resources and guidance material to assist FOI applicants,
ministers and government agencies to engage positively with the FOI Act,
o reviewing and updating the fol owing chapters of the FOI guidelines as per s 93A of
the FOI Act
Part 3 (Processing)
Part 5 (Exemptions)
Part 6 (Conditional Exemptions)
Part 13 (Information Publication Scheme)
o reviewing and updating the Information Commissioner (IC) review procedure
directions made under s 55(2)(e)(ii) of the FOI Act.
o producing Guidance to agencies and ministers’ offices on processing of FOI requests
and transfer of requests under s 16 - arrangements between agencies and ministers
– assessing and incorporating agency comments.
Key Points
Education and Guidance
• The OAIC holds regular information sessions and issues quarterly newsletters for FOI
practitioners, for example:
o
Information Contact Officer Network (ICON) forum held on 28 September 2022
where the Attorney-General and Cabinet Secretary, the Honourable Mark Dreyfus KC
MP and Director-General of National Archives of Australia, Simon Froude, recognised
the importance of the community’s right to know and to access to government-held
information and the great work done by the Australian Information Access
Commissioners and Ombudsmen to develop t
he Open by Design Principles.
o
FOI Statistics information session held virtual y on 6 July 2023 to support agencies
reporting statistics to the OAIC under FOI Act requirements.
o FOI information sessions for micro and extra smal agencies on 27 October 2022 and
Agency roundtable sessions held on 16 November and 6 December 2022.
o 1 December 2022 marked 40 years of the FOI Act with the FOI Commissioner
marking the occasion at the ICON forum and recognising the significant
achievements of FOI practitioners processing and finalising decisions on around
25,000 requests during 2022.
• The OAIC continues to develop
guidance for agencies and FOI applicants:
o new draft guidance for ministers, ministerial staff and agencies assisting ministers on
managing FOI requests. Agencies’ comments have been considered and
incorporated into the final draft currently being reviewed
o updates to the FOI Guidelines: Part 14 (Disclosure Log), fol owing a disclosure log
desktop review and Part 10 (Review by the Information Commissioner)
o completed public consultations on proposed updates to the FOI Guidelines, including
Parts 5 (Exemptions) and Part 13 (Information Publication Scheme). We wil consult
on proposed revisions to Part 6 (Conditional exemptions) shortly.
o revised directions made under s 55(2)(e)(ii) of the FOI Act in relation to procedures
to be followed in IC reviews. The OAIC has consulted on proposed revisions to the 2
existing procedure directions (one for agencies and ministers, and one for IC review
applicants). The revised directions aim to facilitate greater engagement between
applicants and respondent agencies and ministers during the IC review with a view
to more timely and cost-effective resolutions.
Information Publication Scheme
• The FOI Act includes proactive publication mechanisms such as the Information Publication
Scheme (IPS) and disclosure log requirements, that reduce the need for formal access
requests.
2
• We have reviewed our guidance on the IPS (Part 13 of the FOI Guidelines) to give greater
clarity to agencies on its purpose and scope.
• The revised draft guidelines clarify the:
o the types of information that can be released and in what format and
o the overlap between IPS requirements and other proactive publication schemes.
• Consultation on a draft of the revised guidelines closed on 24 February 2023, with copies of
agency submissions available on our website. Updated guidance wil be published on our
website in August 2023 and will be communicated to FOI practitioners and agencies.
• We are preparing the next statutory review of the IPS under s 9 of the FOI Act. We have
commissioned ORIMA Research to conduct a third survey of Australian Government
agencies’ compliance with IPS scheme obligations, fol owing similar surveys in 2012 and
2018.
Domestic Engagement
• FOI Commissioners have regularly engaged with Australian Government agencies and FOI
practitioners, for example:
o presenting at Australian Government Solicitor FOI and Privacy practitioner events in
July and December 2022
o holding high level round table discussions with agencies in November and December
2022
o holding an in-person workshop on the proposed revised IC review procedure
directions for agencies that made a submission, in July 2023
• The Australian Information Commissioner engages with Information Commissioners and
Ombudsmen from other Australian and New Zealand jurisdictions through the
Association
of Information Access Commissioners (AIAC) which meets twice a year. The OAIC hosted
the most recent meeting in June 2023.
3
• On 28 September 2022, the AIAC published a
statement highlighting the importance of
government agencies developing robust digital systems which strengthen the community’s
access to information.
• The OAIC promoted
International Access to Information Day (28 September 2022) through
a dedicated website with FOI resources for the public and FOI practitioners.
• The OAIC is a member of the
Open Government Partnership (OGP) forum which met on
17 April 2023. The Attorney-General addressed the Forum and reaffirmed the
Government’s commitment to the OGP.
International Engagement
• The OAIC is active in promoting information access rights international y and working with
fellow agencies. We continue to col aborate to assist emerging jurisdictions to develop FOI
capability and by sharing experience and best practice.
• The Australian Information Commissioner engages with Information Commissioners
global y through international forums such as the
International Conference of Information
Commissioners (ICIC).
• The OAIC has consulted with international non-government entities to advance access to
information laws around the world. For example:
o OAIC response to the 2022 UNESCO Survey on Public Access to Information
o OAIC responses to ICIC surveys including those on Transparency-by-design, Training
needs and Legal systems.
• In 2022, the OAIC presented on FOI and information access issues at virtual webinars for
the Philippines, Niue and Samoa and hosted a delegation from the Philippines FOI Project
Management Office of the Presidential Communications Operations Office.
• The Oceanic regional report to the ICIC was delivered by the NSW Information
Commissioner on behalf of the Australian Information and Privacy Commissioner, held in
Manila, Philippines in June 2023.
Version: 1
Cleared by: Rocel e Ago
Action officer: Sara Peel
Current at: 10 August 2023
Phone number: (02) 9942 4205
Action officer number: (02) 9942 4142
4
5
link to page 107
Related HTB: Nil
Inquiry into the operation of Commonwealth Freedom of Information (FOI) laws
COMMISSIONER BRIEF Number 12
FOI Extension of time requests
• The OAIC wil decide any application for an extension of time on a case-by-case basis.
Relevant factors considered wil depend on the nature and length of the extension
sought, and may include:
o whether the FOI request is complex and/or voluminous
o whether other extension provisions have been applied
o whether adequate explanatory information has been provided to support the
application for an extension
o whether an applicant has objected to an extension request or been consulted as
part of the extension considerations
o what work has already been undertaken to process the FOI request, and
o what work wil be undertaken if the extension of time is granted.
EOT APPLICATION STATISTICS
2015-16
2016-17
2017-18 2018-19
2019-20
2020-21
2021-22 2022-23
s15AA
5,171
3,805
2,797
2,956
2,800
2,595
3,207
4,683
Notifications
EOTs for IC review
or internal review
17
20
38
43
91
122
169
109
received
1
Requests requiring OAIC decision (ss 15AB, 15AC, 54D and 51DA)
Received
417
587
532
785
1,353
992
1,550
1,678
Finalised
415
594
531
778
1,363
971
1,556
1,665
On hand end
period
14
7
8
15
5
26
20
33
1 ss 54B and 54T. Only one request has been received for s54B extension of time in 2018-19 financial year.
1
Related HTB: Nil
Inquiry into the operation of Commonwealth Freedom of Information (FOI) laws
EOT APPLICATION REQUEST OUTCOMES
2015–16 2016–17 2017–18 2018–19 2019–20 2020–21 2021–22 2022–23
s 15AB - complex
or voluminous
283
453
370
562
786
507
890
1,182
Granted
253
385
317
479
448
361
641
601
Granted varied
8
19
22
16
112
73
98
52
Granted with
conditions
4
1
1
1
Invalid
3
10
4
7
13
10
9
16
Not granted
9
11
11
16
166
27
59
437
Notified
21
20
Withdrawn
6
27
16
44
47
35
61
56
s 15AC – deemed
refusal
102
112
122
178
492
405
556
385
Granted
30
97
100
163
410
335
437
324
Granted varied
3
2
2
22
25
23
7
Granted with
conditions
60
2
Invalid
1
4
7
9
12
18
19
Not granted
6
10
8
6
44
24
59
13
Notified
6
9
Withdrawn
2
3
8
7
9
13
13
s 54D – deemed
affirmation
30
29
38
37
80
57
106
96
Granted
11
21
30
30
60
46
83
72
Granted varied
1
7
2
10
7
Granted with
conditions
18
Invalid
6
8
4
11
1
6
6
Not granted
2
1
2
6
4
3
Notified
2
3
Withdrawn
1
1
2
1
5
s 51DA-
amendment -
1
1
5
2
4
2
deemed refusal
Granted
1
5
2
4
1
Invalid
1
Withdrawn
1
Total
415
594
531
778
1,363
971
1,556
1,665
Version: 1.0
Cleared by: Rocel e Ago
Action officer: Tania Strathearn
Current at: 09/08/23
Phone number: 02 9942 4205
Action officer number: 02 9942 4165
2
Related HTB: NIL
inquiry into the operation of Commonwealth Freedom of Information (FOI) laws
COMMISSIONER BRIEF Number 13
National Cabinet
• On 13 March 2020, a ‘National Cabinet’ was established as an Australian
intergovernmental decision-making forum composed of the Prime Minister and state
and territory Premiers and Chief Ministers.
• Requests for access to documents made to the Department of Prime Minister and
Cabinet (‘PMC’) relating to ‘National Cabinet’ were refused under s 34 of the FOI Act.
• Fol owing the change of government in 2022:
o The National Cabinet remains in existence, and its membership includes the Prime
Minister, the Hon Anthony Albanese MP, and the State Premiers and the Territory
Chief Ministers.
o The approach to considering requests for documents relating to National Cabinet
under the FOI Act, however, appears to have changed. We understand PMC has
more recently refused some access requests for National Cabinet documents on
the basis of the State-Commonwealth relations conditional exemption (s 47B).
• The OAIC currently has a total of 11 open IC reviews involving National Cabinet
documents (see
Attachment A).
Key Points
Administrative Appeals Tribunal decision
• Prior to the change of government, documents relating to ‘National Cabinet’ were
considered by PMC to fal within the cabinet exemption (s 34) of the FOI Act.
• The AAT considered this issue in
Patrick and Secretary, Department of Prime Minister
and Cabinet (Freedom of Information) [2021]
AATA 2719 (5 August 2021) (White J).
• His Honour decided that ‘National Cabinet’, which consists of the Prime Minister and
State and Territory Premiers and Chief Ministers, did not satisfy the requirements of
‘Cabinet’ as required under s 4(1) and did not constitute ‘a committee of the Cabinet’ for
the purpose of s 34 of the FOI Act.
• The Department did not appeal the AAT’s decision.
link to page 110 link to page 110 link to page 110
Current approach to National Cabinet matters
• The National Cabinet remains in existence, and its membership includes the Prime
Minister, the Hon Anthony Albanese MP, and the State Premiers and the Territory Chief
Ministers.
• The approach to considering requests for documents relating to National Cabinet under
the FOI Act, however, appears to have changed. We understand PMC has more recently
refused some access requests for National Cabinet documents on the basis of the State-
Commonwealth relations conditional exemption (s 47B).
•
Media statements are published fol owing each National Cabinet meeting. PMC have
recently released a number of documents following consent orders in a recent AAT
matter and have been since published them on PMC’s disclosure log
.1
• The recent matter brought before the Administrative Appeals Tribunal (AAT) by Rex
Patrick against PMC (previously MR21/01273, AAT reference 2022/5505), in relation to
his FOI request for documents of National Cabinet, was settled on 1 May 2023 after
consent was reached between the parties. In recent media coverage, Mr Patrick has
tweeted that PMC has granted access to ‘.. al documents from the first 20 meetings . .’
2 and that ‘National Cabinet docs that should have been released publicly three years ago,
have final y been released .. ’.
3
• During April and May 2023, the OAIC liaised with PMC regarding 4 active IC reviews
involving documents of National Cabinet where the Department relied on s 34 in
refusing access to the documents at issue. In May 2023, PMC advised the OAIC of its
intention to make revised decisions under s 55G of the FOI Act in al 4 matters. Of these
4 matters, 3 remain open (s47E(d)
and s47E(d) ). See
Attachment A for further details, including expected timeframes for resolution.
1 The recent AAT matter was brought by Rex Patrick against PMC (MR21/01273, AAT reference 2022/5505), in relation to his
FOI request for documents of National Cabinet and was settled on 1 May 2023 after consent was reached between the
parties.
2 @MrRexPatrick (Rex Patrick), ‘#Victory’ (Twitter, 20 April 2023, 4.53pm AEST)
https://twitter.com/MrRexPatrick/status/1648943017645203456.
3 @MrRexPatrick (Rex Patrick), ‘#Transparency’ (Twitter, 2 May 2023, 12.19pm AEST)
https://twitter.com/MrRexPatrick/status/1653222566939738113?cxt=HHwWgoDS0cvKtvEtAAAA.
2
Matters before the OAIC
• In the period 1 July 2020 to 30 June 2023, the OAIC received 25 IC review applications
involving documents of
National Cabinet. Of those matters:
o 11 remain open (see
Attachment A)
o 10 were closed under s 54W(b) of the FOI Act to permit the applicant to apply to
the AAT
o one was closed under s 54W(a)(i) of the FOI Act on the basis that it was lacking in
substance
o two were finalised as withdrawn (s 54R) after PMC administratively released the
documents at issue in full and
o one was finalised as withdrawn (s 54R) in the context of the change of
Government.
• In the period 1 July 2020 to 30 June 2023, the OAIC also received five IC review
applications for matters involving documents of a
Committee of National Cabinet. Of
those matters:
o three also involved documents of National Cabinet and were closed under s
54W(b) of the FOI Act to permit the applicants to apply to the AAT, and
o two were closed as withdrawn (s 54R) in the context of the change of
Government.
• The OAIC has referred 13 National Cabinet matters to the AAT under s 54W(b) of the FOI
Act since Justice White’s AAT decision. The reviews were referred because:
o the applicant asked to have the matter referred to the AAT
o the matters were highly contested, and the subject was of significant public and
media interest, and
o there was a distinct possibility that should the IC reviews have continued, they
would have been appealed by either party to the AAT. It was therefore desirable
for the efficient administration of the FOI Act that the decisions were reviewed by
the AAT at first instance.
3
Attachment A
s47E(d)
4
Inquiry into the operation of Commonwealth Freedom of Information (FOI) laws
COMMISSIONER BRIEF Number 14
IC review of deemed access refusal decisions
• Applications for IC review of deemed access refusal decisions comprise approximately
28% of al the IC reviews on hand.
• In 2022/23 deemed applications comprised 52% of al IC review applications received.
Deemed IC review process
• The IC review process in relation to deemed matters is structured to:
o facilitate a timely and efficient review process
o provide greater certainty of the legal basis for decision making and clarify
the decision under review in IC reviews
o accelerate the progress of the IC review by requiring al relevant documents
to be produced at the commencement of the review.
The process undertaken in managing deemed IC review applications is outlined in
•
Appendix A.
Deemed IC review statistics
• The top 20 agencies with matters involving deemed access refusals due to non-
adherence to statutory timeframes is included in
Appendix B.
Version:1.0
Cleared by: Rocel e Ago
Action officer: Tania Strathearn
Current at: 08/08/23
Phone number: 02 9942 4205
Action officer number: 02 9942 4165
link to page 114
Inquiry into the operation of Commonwealth Freedom of Information (FOI) laws
Appendix A – Process for the intake and case management of deemed
access refusal decisions
Deemed IC review process- key procedural steps
a) On receipt of an IC review application of a deemed access refusal, the Intake and Early Resolution
Team conduct preliminary inquiries with the respondent to confirm that no decision has been
provided within the statutory processing timeframe. The respondent is given 7 days to respond.
b) If the respondent confirms that no decision has been provided to the applicant within the statutory
processing timeframe, a 54Z notice is issued to notify respondent of the commencement of the IC
review. This is accompanied by a notice under s 55T requiring the respondent to either:
i. make a revised decision under s 55G if the decision the agency intends to make wil
result in giving access to the requested documents in full, and to provide the relevant
decision to the applicant and the OAIC or
ii. make a revised decision under s 55G if the decision the agency intends to make wil give
partial access to some of the requested documents, and to provide the relevant decision
to the applicant and the OAIC and al relevant processing documents, including the
documents at issue to the OAIC or
iii. to make submissions in support of the access refusal if the decision is to refuse access,
along with the provision of processing documentation.
c) Respondents are given 3 weeks to provide the requested documents or to make a revised decision.
d) If a revised decision is issued, the revised decision becomes the IC reviewable decision, and the
OAIC will contact the applicant to seek to confirm whether they wish to withdraw or proceed with
their IC review before determining next steps.
e) In the event the applicant wishes to proceed with a review of the revised decision, the Intake and
Early Resolution Team confirms the scope of the IC review. The IC review is transferred to the
Reviews and Investigation Team for allocation. Once allocated, the matter will progress through the
case management stage ahead of any decision under s 55K.
Deemed IC review process- detailed procedural steps
The Intake and Early Resolution Team’s worksheet a
t D2019/014474 (Conducting IC review of deemed
access refusal decisions) sets out the following detailed procedural steps for management of IC reviews:
Stage
Actions
Registration and Triage 1. The Registrations Officer is to register the IC review and the Intake sub-team is to consider
whether there has been a deemed access refusal decision on the FOI request. Factors to consider
include:
o whether the statutory processing period has expired
o whether there has been an application or a request by the agency to ‘passively agree
1’ to an
extension of time
o where a request consultation process under s 24AB has commenced, whether the process
has commenced during the statutory processing period or once there has been a deemed
access refusal.
1 A ‘passive agreement’ refers to an agency requesting an extension of time under s 15AA and advising the applicant that where an
applicant does not respond to the request, the agency takes that as a purported passive agreement by the applicant to extend the
processing period.
Stage
Actions
2. If there has been a deemed access refusal, the Intake sub-team is to consider whether the
application for IC review is valid (including whether it has been made within time); and, if the
application for IC review is out of time, refer to ‘Conducting an IC review – Section 54T Extension of
Time Application Checklist’, which can be found here:
D2019/003336.
3. If the IC review application is valid (because it has been made within time, among other things),
the Registrations Officer is to send acknowledgement letter to the applicant.
4. If the application is valid, the Registrations Officer is also to al ocate the Resolve file to ‘FOI – IC
reviews – Deemed’ queue or ‘FOI- IC reviews – DHA Deemed’ queue if the Department of Home
Affairs [DHA] is the respondent.
5. If the application is invalid, for example because it has been made out of time or does not include
evidence of the FOI request, no preliminary inquiries under s 54V to the respondent are yet
required. Instead, the Registrations Officer is to al ocate the Resolve file to ‘FOI – Triage’ queue for
fol ow-up actions by the Intake sub-team. The Registrations Officer to mark the ‘Assessor Note’
field noting the reason for the application being invalid, using the fol owing convention:
‘[NOW] 54T required’ or ‘[NOW] FOI request required, or ‘[NOW] out of jurisdiction’.
Valid applications only: 6. The Registrations Officer is to send s 54V preliminary inquiries email to the respondent. The
Issue preliminary
respondent is given 1 week to respond. The template can be found here:
D2020/007259.
inquiries
7. The Registrations Officer is to mark the ‘Assessor Note’ field, noting when the preliminary inquiries
response is due, using the fol owing convention:
‘[DD/MM] PIs due’.
8. The Intake sub-team is to monitor the agency response’s due date. If a response has not been
provided by the due date, the Intake sub-team is to call or email the respondent to follow up on
the response.
9. If no response is received after a fol ow-up attempt, the Intake sub-team is to escalate to Director
Intake and Early Resolution Team for consideration of issuing a s 54Z/55T notice.
Preliminary inquiries
10. If the respondent responds to the preliminary inquiries confirming a deemed decision has been
response received:
made, the Intake sub-team is to draft a s 54Z/55T notice requesting a revised decision or
respondent confirms
submissions and relevant processing documentation within 3 weeks. [The template s 54Z/55T
deemed decision
notice in Resolve can be found under the 'All Actions’ tab of the Resolve file by clicking ‘Add
Procedure’, ‘FOI Letter Templates’, ‘Early Resolution Letters (FOI)’ and ‘MR-070 54Z/55T Deemed-
Notice of IC review’].
11. The Intake sub-team is to then allocate an ‘Await Clearance - Director’ action in Resolve to Director
Intake and Early Resolution Team.
12. Director Intake and Early Resolution Team is to have regard to the Direction as to certain
procedures to be fol owed in Information Commissioner reviews (‘IC review procedure direction’)
and Part 10 of the FOI Guidelines, when considering whether to issue a s 54Z/55T notice.
13. Once the s 54Z/55T notice has been approved, the Intake sub-team is to send the notice to the
respondent. The respondent is given 3 weeks to respond, in accordance with the IC review
procedure direction.
14. The Intake sub-team is to update the ‘Assessor Note’ field with the fol owing convention:
‘[DD/MM] 54Z/55T due’.
Preliminary inquiries
15. If the respondent responds to the preliminary inquiries advising that no deemed access refusal
response received:
decision has been made, the Intake sub-team is to assess the circumstances and to conduct further
respondent denies
preliminary inquiries with the respondent, if necessary, to determine the correct status of the
deemed decision
decision and establish jurisdiction.
16. If no access refusal decision has been made [for example, where the applicant’s FOI request was
deemed to have been withdrawn by the applicant pursuant to s 24AB(7) fol owing a request
consultation process, and that notice was issued within the statutory processing timeframe], the
Intake sub-team is to notify the applicant that the IC review application is invalid given no
reviewable access refusal decision has been made, and invite the applicant’s comments within 7
days. As part of this invitation to comment, the Intake sub-team is to include notice of intention to
3
Stage
Actions
finalise the application as invalid in the absence of a response within 7 days. The Intake sub-team
to consult Assistant Director Intake sub-team for guidance in the first instance where required,
including where the applicant provides a response contesting their application is not invalid.
17. If the Intake sub-team is satisfied that a deemed access refusal decision has been made [for
example, where the respondent has refused to deal with an invalid request when a request
consultation process was required to have been undertaken], consult Assistant Director Intake sub-
team in the first instance, prior to drafting a
s 54Z/55T notice commencing a review [refer to steps 10–14 above]. The Assistant Director may
wish to phone the respondent to discuss the OAIC’s views prior to considering whether to draft a s
54Z/55T notice commencing a review. The Assistant Director is to inform the Intake sub-team as to
when the s 54Z/55T notice should be drafted. The s 54Z/55T notice should include a summary of
the OAIC’s reasons as to why there has been a deemed access refusal decision – contrary to the
respondent’s views.
No response to
18. If no response to s 54Z/55T notice has been received by the due date, the Intake sub-team is to cal
s 54Z/55T notice
or email respondent and request a response within 7 days. If no response received by this date,
received: issue fol ow-
Assistant Director Intake sub-team is to contact the respondent advising that the next step in the
up
process is to issue a s 55R Notice. The Intake sub-team is to draft a s 55R notice for consideration
by the Director Intake and Early Resolution Team. [The template s 55R notice can be found here:
D2020/007254.]
19. Relevant considerations to be taken into account when deciding whether to issue a s 55R notice
include:
− the reasons given by the respondent for non-compliance with the s 54Z/55T notice
− the length of time that the FOI request has been on foot
− the subject matter of the FOI request
− whether there are any significant or systemic issues to consider
− Part 10 of the FOI Guidelines
− the IC review procedure direction.
Further guidance on issuing s 55R Notices can be found here:
D2019/014476
20. Once the s 55R Notice has been cleared by Director Intake and Early Resolution Team, the Director
is to raise a Resolve action to Assistant Commissioner FOI for clearance.
21. Once the s 55R Notice has been approved by Assistant Commissioner FOI, the Intake sub-team is to
send the notice to the respondent.
22. The Intake sub-team is to update the ‘Assessor Note' field with the fol owing convention:
‘[DD/MM] 55R due’.
Response to s 54Z/55T 23. Once the OAIC has been advised by the respondent that a revised decision has been provided to
notice received:
the applicant and a copy of the decision provided to the OAIC, the Intake sub-team is to send a
respondent has
‘proceed’ email to the applicant. The applicant is given 14 days to advise if they wish to proceed or
provided a revised
withdraw their application for IC review. The proceed email requires that the applicant provide
decision to the
reasons in the event they wish to proceed with the review in accordance with the Direction as to
applicant
certain procedures to be fol owed by applicants in Information Commissioner reviews (‘IC review
procedure direction for applicants’). This email is to contain notice that if a response is not
received by the due date, the IC review wil be finalised under s 54W(c) of the FOI Act based on a
failure to comply with the Commissioner’s procedure direction.
The 'proceed’ email template can be found here:
D2023/013037.
24. The Intake sub-team is to mark the ‘Assessor Note’ field with the fol owing convention:
‘[DD/MM] ITD to A due’.
25. Once a revised decision has been provided, the Registrations Officer is to update the Resolve file
with the s 54Z/55T response including the new agency decision details under the ‘Agency
Decisions’ tab of the file. The revised decision should be copied to the file as a stand-alone
document and categorised as a ‘55G revised decision’ through ‘Document Properties’ to ensure it
can be captured for reporting purposes. The 55G decision drop down indicator on the Resolve
4
Stage
Actions
home screen should also be completed to show that a revised decision has been received in
response to a deemed access refusal decision.
If no response to
26. If no response to the ‘proceed’ email has been received, the Intake sub-team is to fol ow up with
proceed email is
the applicant by phone where phone number has been provided. The Intake sub-team is to file
received
note the phone contact attempt.
Closure of IC review
27. If no response to the fol ow-up action or to the ‘proceed’ email from the applicant has been
under s 54W(c)
received, the Intake sub-team is to draft a decision to finalise the matter under
s 54W(c) of the FOI Act for consideration by Director Intake and Early Resolution Team.
The s 54W(c) closure letter template can be found here:
D2023/013035. Further guidance on consideration of whether to close an IC review under s 54W can be found
here:
D2018/016247.
28. The Intake sub-team is to al ocate a Resolve file action to Director Intake and Early Resolution
Team for clearance. Assistant Commissioner FOI clearance of s 54W(c) closure letters is at the
discretion of the Director for contentious or sensitive matters.
29. Once the closure letter has been approved, the Intake sub-team is to convert the closure letter to a
PDF and send a copy to the applicant and the respondent, in separate emails.
30. The Intake sub-team is to immediately update the ‘Agency Decisions’ tab of the Resolve file,
finalising any outstanding issues under s 54W(c), and finalise the IC review. The staff member may
prefer to allocate the matter into their name prior to finalisation.
31. The Intake sub-team is to close the IC review.
Response to proceed
32. If the applicant advises that they wish to proceed with the IC review, the Intake sub-team is to
email received:
send an acknowledgement email to the applicant, confirming the scope of the review. If the scope
applicant advises that
of the review unclear, the Intake sub-team is to send an acknowledgement email to include
they wish to proceed
request for reasons to be provided in support of IC review within 14 days.
with IC review
33. The Intake sub-team is to send an update email to the respondent advising that the applicant
wishes to proceed with the IC review. Template email can be found here:
34. If reasons are required from the applicant, mark the Assessor field with the fol owing convention:
‘[DD/MM] Subs from A due’.
35. The Intake sub-team is to ensure a full response has been provided to the s 54Z/55T notice prior to
moving matter to Assessments queue [for example, any processing documentation or submissions
required in the notice should be on file].
36. The Intake sub-team is to update the Resolve file [for example, to update the ‘Agency Decisions’
tab to include issues under review, and the summary field] and al ocate the matter to the ‘FOI – IC
reviews – Assessment’ queue. The Intake sub-team is to mark the ‘Assessor Note’ field noting
there has been a deemed access refusal decision and the matter is ready for further assessment
using the fol owing convention:
‘[NOW] Deemed refusal’.
37. The assessing officer wil assess the complexity of the review using the Conducting IC Reviews-
Case Categories worksheet a
t D2020/000377, and categorise the matter accordingly. The review
wil then be re-assigned to the Reviews and Investigations Team for case management ahead of
any decision under s 55K.
Response to proceed
38. If the applicant advises that they wish to withdraw their IC review, the Registrations Officer is to
email received:
send a withdrawal acknowledgement email to the applicant. Email template can be found here:
applicant advises that
D2020/007272.
they wish to withdraw
39. The Registrations Officer is to notify the respondent by email that the applicant has withdrawn
their IC review
their request for IC review and confirm that the matter is now closed. Email template can be found
application
here:
D2020/007270.
40. The Registrations Officer is to update the Resolve file and close the file without delay, finalising
outstanding issues in the ‘Agency Decisions’ tab as withdrawn.
5
Inquiry into the operation of Commonwealth Freedom of Information (FOI) laws
Appendix B- Top 20 agencies with matters involving deemed access refusals due to non-adherence to
statutory timeframes
IC review deemed refusal (s 15AC) by respondent agency
2017–18 2018–19 2019–20 2020–21 2021–22 2022–23
Department of Home Affairs
6
16
170
315
885
594
Services Australia
1
4
49
13
37
35
National Disability Insurance Agency
1
4
3
17
66
Australian Federal Police
4
6
12
20
8
31
Department of Foreign Affairs and Trade
1
23
26
22
2
Department of Veterans' Affairs
4
8
15
28
Department of Defence
1
4
4
23
18
Prime Minister of Australia
1
17
8
6
Commonwealth Ombudsman
5
20
Department of Health and Aged Care
1
4
6
12
2
Attorney-General's Department
1
5
9
1
4
4
Department of the Prime Minister and Cabinet
1
1
3
5
4
4
Department of Industry, Science, Energy and Resources
2
8
4
1
Australian Broadcasting Corporation
1
4
4
4
1
Australian Taxation Office
2
2
1
4
5
Department of Infrastructure, Transport, Regional Development,
4
1
5
Communications and the Arts
Queensland Department of Education
10
Minister for Home Affairs
1
6
2
Comcare
1
1
2
3
1
1
Department of Social Services
2
5
2
All others
2
13
27
33
50
38
Total
21
57
349
465
1,107
854
Related HTB: Nil
Inquiry into the operation of Commonwealth Freedom of Information (FOI) laws
COMMISSIONER BRIEF Number 15
IC Review Procedure Direction
• The Information Commissioner may give written directions under s 55(2)(e)(i)
of the FOI Act in relation to procedures to be followed in Information
Commissioner (IC) reviews.
• The OAIC has proposed revisions to the 2 existing procedure directions:
o Direction as to certain procedures to be followed in IC reviews for
agencies and ministers (
Attachment A)
o Direction as to certain procedures to be followed by applicants in
Information Commissioner reviews.
• The purpose of the proposed revisions was to:
o clarify the process for dealing with IC review applications involving
deemed access refusal decisions
o require agencies and ministers to undertake engagement with an
applicant at the commencement of an IC review
o clarify the requirement for agencies and ministers to provide a marked
up and unredacted copy of the documents at issue in an IC review, as
well as a schedule of documents
o provide that submissions will only be requested after the completion of
the initial triage and early resolution process, and following any case
management activities that may occur as a result of the compulsory
engagement process
o provide that no further submissions will be accepted from either party to
an IC review (unless either requested by the OAIC or procedural fairness
requirements are identified)
o articulate additional potential regulatory action for non-compliance
with the direction.
• The consultation period for feedback/submissions closed on Friday 30 June
2023.
• A summary of the submissions is set out at
Attachment B and the list of
submissions is set out at
Attachment C.
• The OAIC held an in-person workshop for agencies that provided submissions
on 12 July 2023. For talking points, see
D2023/015811.
•
Key themes and feedback
o
Requirement to engage: There is significant resistance to the
mandatory nature of the requirement to engage with applicants.
Agencies raise administrative burden, concerns about risks to staff,
limited benefit or utility, as well as a range of other concerns. Agencies
also consider that there should be flexibility in the method of
engagement with applicants – so they are not limited to video and
telephone conference – and raise applicants’ needs and preferences.
Agencies have also submitted that the OAIC should be involved in the
engagement as an independent third party.
o
Timeframes: Time frames are too short, extensions should be available
other than in extenuating circumstances, or guidance should be
provided as to what constitutes extenuating circumstances.
o
Production of documents and requests to make submissions in
confidence: Agencies were also concerned regarding the requirement
to provide marked-up and unredacted documents, as well as the
requirement to request to make confidential submissions ahead of
providing the submission.
o
Other issues:
The OAIC should identify issues in dispute at an early stage of the
IC review process and communicate this to parties to establish
scope, facilitate targeted submissions and an efficient process.
There should be more information about the steps and process
undertaken by the OAIC, including the timeframes that apply to
the OAIC.
Version: 1.0
Cleared by: Rocelle Ago
Action officer: Romina Domenici
Current at: 18/08/23
Phone number:
Action officer number:
Attachment A
Direction as to certain procedures to be
followed in IC reviews
This direction is given under s 55(2)(e)(i) of the
Freedom of Information Act 1982.
i
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Contents
Direction as to certain procedures to be followed in IC reviews
1.
About this Direction ................................................................................... 3
2.
General principles ...................................................................................... 3
3.
General procedure in relation to IC review of deemed refusal decisions
4
Preliminary inquiries ............................................................. 4
Commencement of review ...................................................... 4
4.
General procedure in relation to review of other access refusal and
access grant decisions ......................................................................................... 5
Commencement of review ...................................................... 5
Requirement to engage with the applicant ............................... 5
Response to s 54Z notice ......................................................... 5
5.
General procedure for production and inspection of documents .......... 6
Production of documents ........................................................ 6
Inspection of documents ......................................................... 7
6.
General procedure in relation to submissions made during an IC review
8
General principles .................................................................. 8
Request to make submissions in confidence .............................. 8
Consideration of submissions .................................................. 9
7.
Non-compliance with this Direction ......................................................... 9
Annexure 1: Information gathering and document production
powers ............................................................................... 11
Annexure 2: Evidence checklist – IC review compulsory
conference ......................................................................... 12
ii
link to page 123 link to page 123 link to page 123
1. About this Direction
1.1 This Direction is given by the Australian Information Commissioner under s 55(2)(e)(i) of the
Freedom of Information Act 1982 (the FOI Act) in relation to Information Commissioner (IC)
reviews general y.
1.2 The purpose of this Direction is to set out the particular procedures that agencies and
ministers are required to follow during IC reviews, including procedures relating to:
• deemed access refusal decisions
• a requirement to engage, or make reasonable attempts to engage, with IC review
applicants during the IC review for the purpose of genuinely attempting to resolve or
narrow the matters at issue in the IC review
• the production of documents and submissions.
1.3 This Direction does not apply to the extent it is inconsistent with a provision of the FOI Act,
another enactment or a specific direction made in a particular IC review.
1.4 This Direction is not a legislative instrument.
1
1.5 This Direction has effect from 1 July 2023.
2. General principles
2.1 IC review procedures are found in Part VII of the FOI Act. The IC review process is intended to
be an informal, non-adversarial and timely means of external merits review of decisions by
agencies and ministers in relation to FOI requests. Part 10 of the Guidelines issued by the
Australian Information Commissioner under s 93A of the FOI Act, to which ministers and
agencies must have regard in performing a function or exercising a power under the FOI Act,
sets out in detail the process and underlying principles of IC review.
2.2 Before commencing an IC review, the Information Commissioner wil notify the relevant
agency or minister that an applicant has applied for IC review of the agency or minister’s
decision (s 54Z notice of IC review).
2
2.3 Section 55(2)(a) of the FOI Act authorises the Information Commissioner to conduct an IC
review in whatever way the Information Commissioner considers appropriate.
Section 55(2)(d) of the FOI Act allows the Information Commissioner to obtain any
information from any person and to make any inquiries that the Information Commissioner
considers appropriate.
2.4 In general, IC reviews will be conducted on the papers unless there are unusual
circumstances to warrant a hearing.
3 Therefore, complete and timely production of
1 Section 55(3) of the FOI Act.
2 Not every application for IC review will proceed to an IC review. The Office of the Australian Information Commissioner,
Guidelines issued
by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (FOI Guidelines) set out the
circumstances in which the Information Commissioner may not conduct a review at [10.81] and [10.85] – [10.86].
3 See
FOI Guidelines at [10.20] and [10.63].
documents at issue, submissions and any other information that has been requested is
important.
2.5 Under s 55DA of the FOI Act, agencies and ministers must use their best endeavours to assist
the Information Commissioner in the conduct of IC reviews. Under s 55D(1) of the FOI Act,
agencies and ministers have the onus of establishing that a decision refusing access is
justified or that the Information Commissioner should give a decision that is adverse to the IC
review applicant in an IC review of an access refusal decision. The Information Commissioner
will make a decision in an IC review on the basis of the evidence before them. Failure to
properly satisfy the onus in s 55D(1) by providing the Information Commissioner with
complete and appropriate evidence for an access refusal decision will increase the likelihood
of a decision being made that is adverse to an agency or minister.
2.6 Section 55Z of the FOI Act provides immunity to a person from civil proceedings and penalties
if the person gives information, produces a document or answers a question in good faith for
the purposes of an IC review.
3. General procedure in relation to IC review of deemed refusal decisions
Preliminary inquiries
3.1 Where an application for IC review is made in relation to an FOI request that is deemed to
have been refused under ss 15AC(3), 51DA(2) or 54D(2) of the FOI Act, the Information
Commissioner will undertake preliminary inquiries under s 54V of the FOI Act. In undertaking
preliminary inquiries, the Information Commissioner will require the agency or minister to
confirm that the relevant FOI request is deemed to have been refused.
3.2 Agencies and ministers will have one week to respond to the Information Commissioner’s
preliminary inquiries.
Commencement of review
3.3 If the agency or minister confirms that the relevant FOI request is deemed to have been
refused, or fails to respond to the Information Commissioner’s preliminary inquiries, a notice
under s 54Z will be issued notifying of the commencment of an IC review. This notice will be
accompanied by a direction under s 55(2)(e) of the FOI Act, requiring the agency or minister to
either:
a. make a revised decision under s 55G if the decision the agency or minister intends to
make will result in the giving of access to the requested documents in ful and to provide
the relevant decision to the applicant and to the Information Commissioner or
b. make a revised decision under s 55G if the decision the agency or minister intends to
make will result in the giving of access to some of the requested documents, and to
provide the relevant decision and non-exempt documents to the applicant, and to
provide al relevant processing documents and the documents remaining at issue to the
Information Commissioner or
c. make submissions in support of the access refusal if the agency or minister intends
refusing access to the requested documents and to send those submissions to both the
4
link to page 125
Information Commissioner and the applicant. The agency or minister must also provide
all relevant processing documents and exempt documents to the Information
Commissioner under s 55T of the FOI Act.
3.4 Agencies and ministers will have 3 weeks to respond to the Information Commissioner’s
written direction.
4. General procedure in relation to review of other access refusal and access grant
decisions
Commencement of review
4.1 The Information Commissioner will issue a notice under s 54Z of the FOI Act to advise the
respondent agency or minister of the commencement of the IC review (s 54Z notice).
Requirement to engage with the applicant
4.2 The s 54Z notice will also require the agency or minister to engage, or make reasonable
attempts to engage with, the IC review applicant during the IC review, for the purpose of
genuinely attempting to resolve or narrow the issues in dispute in the IC review.
4.3 Engagement with IC review applicants will comprise a telephone or video conference
between the applicant and the agency or minister. The agency or minister will be responsible
for contacting the applicant and making the necessary arrangements for the engagement
process. The OAIC will not be involved in making such arrangements or in attending the
telephone or video conference.
Response to s 54Z notice
4.4 The agency or minister will generally have 8 weeks to respond to the Information
Commissioner’s s 54Z notice. The 8 week timeframe takes into account the time needed to
contact and make arrangements with the applicant for the engagement process, and to reach
agreement, where relevant. It is not expected that agencies or ministers will require any
additional time. The Information Commissioner will consider any request for an extension of
time on a case-by-case basis. However it is expected that it will only be in extenuating
circumstances that any further extension to time wil be granted.
4.5 Respondent agencies and ministers must provide the Information Commissioner with
evidence of the action they have taken to address the issues identified in the IC review
application, or actions taken to contact the applicant.
4
4.6 The evidence to be provided to the Information Commissioner will include:
• evidence that the agency or minister has taken genuine and reasonable steps to contact
the IC review applicant, including any written correspondence issued to the applicant
and any file notes of telephone cal s made to the applicant
4 An agency may not be required to engage in the conciliation process if it is able to provide evidence of having engaged in a similar process at an earlier stage. However, participation in
formal statutory processes (for example, the request consultation process outlined in s 24AB of the FOI Act in relation to practical refusals) will not be a basis for not consulting the
applicant in relation to the IC review.
5
link to page 126 link to page 126 link to page 126
• evidence of communications and any correspondence with the IC review applicant that
demonstrates the attempts made by the parties to resolve the issues in dispute,
including any proposals made by the agency or minister to resolve the IC review
informally, and any response from the applicant
• evidence of the outcome of the engagement between the agency or minister and the IC
review applicant, including any evidence the applicant has notified the agency or
minister in writing that their IC review application is withdrawn as a result of the agency
or minister’s contact with the applicant.
5
4.7 In the event that not all issues in dispute in the IC review are resolved through the
engagement process with the IC review applicant, respondent agencies and ministers should
consider whether to make a revised decision under s 55G of the FOI Act.
4.8 If the respondent agency or minister decides not to make a revised decision under s 55G
giving full access in accordance with the applicant’s FOI request, agencies and ministers are
required to provide the Information Commissioner with the FOI request processing
documents and marked up copies of the exempt documents at issue in the IC review (if
applicable) (see [5.2] below).
5. General procedure for production and inspection of documents
Production of documents
5.1 The Information Commissioner has various powers to require the production of information
and documents under the FOI Act. These powers are are outlined in Annexure 1 to this
Direction. In addition to the Information Commissioner’s information gathering powers under
Division 8 of the FOI Act, the Information Commissioner is able to obtain any information
from any person, and to make any inquiries, that are considered to be appropriate under
s 55(2)(d) of the FOI Act. Therefore, when the Information Commissioner commences an IC
review by issuing a notice of IC review, the Information Commissioner will also request
relevant information and documents to progress the IC review.
5.2 Document production requirements may vary from case to case depending on the issues
being considered (application of exemptions, searches, charges or practical refusal).
6 In
relation to IC reviews involving the application of exemptions under the FOI Act, the
Information Commissioner wil require the agency or minister to provide a marked up and
unredacted copy of the documents at issue in electronic format and the documents setting
out any relevant consultations (for example, under ss 26A, 27 or 27A of the FOI Act).
7
5.3 In providing the Information Commissioner with a marked up copy of relevant documents,
agencies and ministers must ensure that all redactions pursuant to an exemption, or
deletions on the basis of relevance pursuant to s 22(1)(a)(ii) of the FOI Act, are clearly marked
5 At Annexure 2 to this Direction is an evidence checklist designed to assist agencies and ministers provide relevant evidence relating to the
agency or minister’s engagement with the applicant during the IC review.
6 See
FOI Guidelines at [10.98].
7 See
FOI Guidelines at [10.100].
6
link to page 125 link to page 127 link to page 127
with reference to the relevant provision of the FOI Act that the redactions or deletions are
made under. A schedule of marked up documents must also be included.
5.4 In IC reviews where an agency or minister claims that documents cannot be found or do not
exist, the Information Commissioner will require the agency or minister to provide evidence
of the searches that have been undertaken to find relevant documents.
8
5.5 In IC reviews involving a charge or a practical refusal reason, the Information Commissioner
may require the agency or minister to provide a sufficiently representative sample of
documents considered to be within the scope of the request
.9
5.6 Agencies and ministers must provide their response within the timeframe set out in the
notice, unless an extension of time has been sought and granted. However as noted a
t [4.4],
the Information Commissioner considers that it will only be in extenuating circumstances
that any further extension to time wil be granted. If an agency or minister requires an
extension of time to respond to a notice of IC review, the agency or minister must make a
request in writing to the Information Commissioner with supporting evidence of the need for
the extension prior to the due date.
5.7 Where an agency or minister fails to provide information and documents within the initial or
extended timeframe, or requests another extension, the Information Commissioner may
proceed to require the provision of information and the production of documents pursuant to
s 55R of the FOI Act (discussed at Annexure 1 to this Direction).
Inspection of documents
5.8 Inspection of the documents at issue by the Information Commissioner in response to a
request for production wil only be considered in very limited situations where the agency or
minister can demonstrate that the circumstances warrant inspection rather than the direct
production of copies of the marked up documents.
5.9 What constitutes these very limited circumstances is not prescriptive and will be determined
on a case-by-case basis. The onus is on the requesting agency or minister to justify that
circumstances exist that warrant inspection.
5.10 If an agency or minister is of the view that there are circumstances that justify inspection, the
Information Commissioner wil require the agency or minister to provide a written request for
inspection together with supporting reasons prior to the due date in the s 54Z notice of IC
review.
5.11 The Information Commissioner considers that inspection will not be warranted where the
documents at issue are subject to conditional exemptions. The Information Commissioner
considers that inspection may be appropriate in some circumstances where the documents
at issue are subject to a national security, Cabinet or Parliamentary Budget Office exemption
8 See
FOI Guidelines at [10.98].
9 See
FOI Guidelines at [3.121] and the IC review decisions in
Adrian Wright and Department of Human Services (Freedom of information)
[2017] AICmr 127 and
Cash World Gold Buyers Pty Ltd and Australian Taxation Office (Freedom of information) [2017] AICmr 20.
7
link to page 128 link to page 128 link to page 128
claim (ss 33, 34 and 45A of the FOI Act). However, the requesting agency or minister must
satisfy the Information Commissioner that the circumstances warrant inspection.
10
5.12 If the Information Commissioner agrees to an agency’s or minister’s request for inspection,
the agency or minister will be required to undertake all necessary arrangements to facilitate
the inspection. Unless otherwise agreed, this wil occur at the Information Commissioner’s
office.
6. General procedure in relation to submissions made during an IC review
General principles
6.1 All parties to an IC review will be given a reasonable opportunity to present their case through
written submissions.
6.2 Written submissions will be sought from parties following the completion of the initial triage
and early resolution process and once the matter has been assigned to a review adviser for
substantive review/case management.
6.3 In seeking submissions from agencies and ministers in support of the IC reviewable decision,
the OAIC will require the agency or minister to send their submissions to the applicant at the
same time as they are sent to the Information Commissioner. The applicant will then have the
opportunity to make submissions in response. The applicant will be required to send their
submissions to the agency or minister at the same time as they are sent to the Information
Commissioner.
6.4 Subject to
[6.6], the Information Commissioner wil not accept any further submissions from
either party to the IC review.
6.5 The Information Commissioner will general y provide each of the parties with 4 weeks to
make their submissions.
6.6 The Information Commissioner will contact the parties after receipt of submissions if
procedural fairness requirements are identified or where a preliminary view can be provided
to an agency that may result in an agency or minister making a revised decision under s 55G
of the FOI Act.
Request to make submissions in confidence
6.7 If an agency or minister wishes to make a submission in confidence, a request for the
submission to be treated in confidence must be made before providing the submission. Any
request for confidentiality must be accompanied by reasons to support such a claim,
including whether the submission would reveal the contents of the documents at issue.
6.8 Where the Information Commissioner accepts a submission in confidence, agencies and
ministers must provide a version of the submission that can be shared with the applicant.
11
10 The OAIC is able to receive secure electronic transmission of documents. For more information contact the OAIC.
11 See
FOI Guidelines at [10.103].
8
link to page 129 link to page 129
6.9 If the Information Commissioner forms the view that the submission does not disclose
exempt matter, or is otherwise not inherently confidential, the Information Commissioner
will advise the agency or minister of this view and invite the agency or minister to withdraw
the claim for confidentiality with respect to the submission. If the agency or minister does not
wish to withdraw the claim for confidentiality they may elect to withdraw the submission
because it will not be considered by the Information Commissioner to make a decision under
s 55K of the FOI Act on the issues in the IC review.
Consideration of submissions
6.10 The Information Commissioner will general y proceed with the IC review on the basis of the
evidence provided in response to the s 54Z notice, and submissions.
6.11 Where the Information Commissioner makes a decision on IC review pursuant to s 55K of the
FOI Act, the Information Commissioner will quote or summarise an agency’s or minister’s
non-confidential submissions in the published decision. If a confidential submission is relied
on by the Information Commissioner in making a decision on the IC review, this will be noted
in the decision without revealing the confidential material.
6.12 In providing submissions, agencies and ministers should be mindful of their obligation to
assist the Information Commissioner pursuant to s 55DA of the FOI Act and their onus under
s 55D of the FOI Act. As it may be appropriate for an IC review to proceed to a decision under s
55K of the FOI Act on the basis of a response to a notice of IC review, it is in agency’s and
ministers’ interests to put forward all relevant contentions and supporting reasons in
response to the notice of review.
12
6.13 Agencies and ministers should be aware that if they do not make submissions when an
opportunity to do so has been provided, the review may proceed to a decision under s 55K of
the FOI Act without any further opportunity to make submissions.
7. Non-compliance with this Direction
7.1 Because the model litgant obligation under the
Legal Services Directions 2017 extends to
Commonwealth entities involved in merits review proceedings, failure to adhere to the
requirements of this Direction may amount to non-compliance with the model litigant
obligation.
13
7.2 The Information Commissioner may report non-compliance with this Direction in the Office of
the Australian Information Commissioner’s Annual Report.
7.3 The Information Commissioner may also report non-compliance with this Direction to the
Office of Legal Services Coordination in the Attorney-General’s Department.
7.4 The Information Commissioner may also consider investigating the non-compliance under
Part VIIB of the FOI Act.
12 See
FOI Guidelines at [10.74].
13 See paragraph 3 of Appendix B to the
Legal Services Directions 2017.
9
Angelene Falk
Australian Information Commissioner
DATE
10
link to page 131
Annexure 1: Information gathering and document
production powers
1. Notice to Produce
1.1 Pursuant to s 55R(3) of the FOI Act, the Information Commissioner may issue a written Notice
to Produce to require an agency or minister to give information or produce documents of a
kind specified in the Notice. A Notice to Produce may also be issued in conjunction with either
ss 55T or 55U of the FOI Act (discussed below).
1.2 The Information Commissioner will al ow at least 2 weeks for agencies and ministers to
respond to a Notice to Produce. It is an offence to fail to comply with a Notice to Produce
issued by the Information Commissioner.
2. Production of exempt documents generally
2.1 Section 55T of the FOI Act concerns the production of exempt documents general y. This
section applies when an agency or a minister claims that a document is an exempt document
and the document is not covered by s 55U of the FOI Act (discussed below).
2.2 Section 55T(2) of the FOI Act provides that, for the purposes of deciding that a document is an
exempt document, the Information Commissioner may require the document to be
produced. In addition, s 55T(4) of the FOI Act provides that the Information Commissioner
may require the production of an exempt document for the purpose of determining whether
it is practicable for an agency or a minister to give access to an edited copy of the document.
3. Production of particular exempt documents
3.1 Section 55U of the FOI Act concerns the production of documents subject to a national
security, Cabinet or Parliamentary Budget Office exemption claim (ss 33, 34 or 45A the FOI
Act).
3.2 Section 55U(3) of the FOI Act provides that, if the Information Commissioner is not satisfied
by evidence on affidavit or otherwise that a document is an exempt document under ss 33, 34
or 45A of the FOI Act, the Information Commissioner may require the document to be
produced for examination.
3.3 If, after examining the documents, the Information Commissioner is still not satisfied that the
documents are exempt under s 33 of the FOI Act, pursuant to s 55ZB of the FOI Act, the
Information Commissioner will request the Inspector-General of Intelligence and Security to
appear and give evidence on the damage that would or could reasonably be expected to
result from the release of the documents.
14
14
The Information Commissioner has a Memorandum of Understanding with the Inspector-General of Intelligence and Security to facilitate the
Information Commissioner’s information gathering powers.
11
Annexure 2: Evidence checklist – IC review compulsory
conference
The ‘
Direction as to certain procedures to be followed in IC reivew’ issued under s 55(2)(e)(i) of the
Freedom of Information Act 1982 by the Australian Information Commissioner requries agencies and
ministers to engage, or make reasonable attempts to engage, with IC review applicants during the IC
review.
Agencies and ministers must provide the Information Commissioner with evidence of the action they
have taken to address the issues identified in the IC review application, or actions taken to contact the
applicant. This checklist has been developed to assist agencies provide relevant evidence and can be
used as a cover when providing relevant evidence to the OAIC.
1. Contact with IC review applicant
☐ Attached
Evidence of earlier engagement in similar process*
☐ Not applicable
☐ Attached
Copy of letter sent to IC review applicant to arrange contact
☐ Not applicable
Date of Letter
[insert date]
☐ Attached
File note of telephone cal to IC review applicant
☐ Not applicable
☐ Attached
Copies of written correspondence from IC review applicant
☐ Not applicable
2. Attempts to resolve issues in dispute
☐ Attached
File note of engagement with applicant
☐ Not applicable
☐ Attached
Suggestions made by agency/minister to resolve IC review
☐ Not applicable
Response provided by applicant, and any suggestions made by ☐ Attached
applicant to resolve IC review
☐ Not applicable
3. Outcome of engagement
Outcome of engagement
☐ Attached
☐ Not applicable
Written notification that IC review applicant wishes to withdraw ☐ Attached
their application for IC review
☐ Not applicable
* An agency may not be required to engage in the engagement process if it is able to provide evidence of having engaged in a similar
process at an earlier stage. However, participation in formal statutory processes (for example, the request consultation process
outlined in s 24AB of the FOI Act in relation to practical refusals) wil not be a basis for not consulting the applicant in relation to the
IC review.
12
Attachment B
Summaries of agencies’ submissions
Agency
Comments
Administrative
Comments on process and overview
Appeals Tribunal
• Suggests increasing clarity on components and timeframes, including flow chart. For example, the stage of the process in which submissions are
(AAT)
requested is not clear. [para 3.2; 3.4; 4.4; 6.5]
D2023/014318
• Not clear how and when identification of the issues in the IC review application occurs. Efficiency will be enhanced if issues are determined by the
OAIC as early as possible (at point of notifying the agencies) and conveyed to the parties, enabling them to focus on real issues in dispute, and
manage the scope/expectations of further engagement. [4.1; 4.2]
• This submission makes a range of detailed/technical comments concerning the directions and suggests various aspects where clarity could be
increased.
Response to s 54Z notice and s 55(2)(e) direction
• Requirement at 3.3b to provide the processing documents and remaining documents at this stage based on a deemed refusal seems premature.
Should check with applicant whether they want a review of material exempted under the decision before the material is unnecessarily collected
and submitted to the OAIC.
• Requirement at 3.3c to make submissions in support of the access refusal – suggest it would be preferable to provide a statement of reasons for the
decision; also reiterate comment above about requirement to provide processing and exempt documents.
• 3 weeks may be too short in some cases, could refer to the possibility of seeking an extension of the time frame by way of consultation.
Time frames
• Time frames are generally too short, given the increased complexity of digital information collection/storage and increasing breadth and volume of
requests. [Para 4.4;]
• Given the significant variation in complexity, the setting of time periods for the provision of material should be done in consultation with the agency
rather than relying on standard time frames. It is usual for a court or tribunal to ask parties how long they need in setting a timetable. This also
avoids the need to commit resources to administering extension of time requests.
• The 2-week time period (set out in Annexure 1) to respond to a Notice to Produce should instead be set following consultation with the agency
(given preparation may be resource intensive and failure to comply is an offence).
Engagement requirement
• The engagement process should only occur where there has been no internal review and the manner in which it should be conducted should be left
to the agency, which will have a better understanding of the best way to communicate with the applicant. Engagement requirement may cause
delay or annoy the applicant where engagement has already occurred.
Agency
Comments
• Unreasonable to undermine arrangements/protocols for applicants who have engaged in abusive/unreasonable behaviour, refers to managing
psychological hazards
• Evidence of the engagement could be more proportionately satisfied by the provision of a statement similar to that required by federal courts by
section 6 of the
Civil Dispute Resolution Act 2011.
Production of documents
• Marking up and schedule requirements can be resource intensive. Suggests referring to the Information Commissioner’s ability to specify
alternative requirements, which can be determined in consultation with the agency/minister where appropriate.
• Unclear how time-frame in the notice is determined. 8-week time-frame, this is insufficient for the outcome of any engagement to be considered by
the OAIC and taken into account in narrowing scope to issues in dispute. Suggest the time-frame is determined in consultation with the agency.
Australian
Engagement requirement
Federal Police
• Disagrees with compulsory requirement. Raises workplace health and safety implications on the FOI practitioners.
(AFP)
• FOI practitioners are not trained mediators. Notes time and expense to upskill FOI practitioners in negotiation or to engage external (legal)
D2023/015096
providers.
This summarises
• Attempts at engagement are frequently made at the primary decision or internal review stages. Unlikely to have more success in reaching
their public
resolution at the IC stage, particularly without the involvement of an independent third party.
submission.
Response to s 54Z notice
AFP have also
submitted a
• Evidence requirements in response to a 54Z notice will place additional reporting and administrative obligations on agencies. Expresses concern
‘confidential
that this will add further pressures to the staff workloads, detrimentally affect FOI processing timeframes.
submission’ with
further
Making an application for IC review
information. We
• Recommends adding the requirement for an agency reference number to the information that an applicant must provide. Applicants may have
have requested
multiple FOI matters at various stages – without the reference, it can be difficult to establish which is the relevant matter.
they provide
reasons for us
not to publish.
Australian
Commencement of review: s 54Z notice and direction under s 55(2)(e)
Taxation Office
• Suggests that we soften language to indicate that the three options in response to a s 55(2)(e) notice (release in full, release in part, refuse access)
(ATO)
will generally be applicable, and that extensions might be appropriate in some cases.
D2023/015090
14
Agency
Comments
• There are circumstances not covered by the above options – for example, in complex matters it may be still unclear what or how many documents
might be caught by a request, and an agency may consider an unreasonable diversion of resources argument.
• Agencies may not be able to comply with the 3-week time-frame e.g. because of the number or sensitivity of documents or the time lapsed since the
decision was made.
Engagement requirement
• Considers that either an aspirational or matter specific approach would be preferable.
• Requirement may lead to a ‘tick box’ exercise without meaningful results in a majority of cases.
• Where disagreements over ‘discretionary’ matters – such as size/scope of request – are not resolved at initial decision or internal review stages, it is
unlikely further engagement will progress the matter. In the case of ‘non-discretionary’ issues – such as the application of the tax law
confidentiality – it is not useful to set out the same reasoning which has not previously been accepted by the applicant.
• Avenues to resolve issues can occur outside the engagement process, such as by investigating issues, exploring options for resolution with other
agency officers or with third parties. The ATO assumes that such attempts will not be taken into consideration.
• Notes circumstances where it is appropriate not to engage with applicants beyond what is necessary for their statutory functions, including for WHS
reasons. Engagement is also unlikely to be effective where an applicant repetitively seeks access, in cases where an agency has explained why they
cannot provide access.
Production of documents
• Submits that they should not be obligated to provide a marked up and unredacted copy of the document at issue in some cases – in particular,
evidence to justify an exemption can exist with having regard to those documents. They make some exemption decisions without searching for and
collating the documents (e.g. Person A requesting Person B’s tax return, in some instances there are also applicable offence provisions). This means
they would be searching for and collating documents solely for the purposes of the IC review.
Production of schedule
• Submits that the requirement for a schedule of marked up documents to be provided should not be necessary in every case but only ‘where
appropriate’. Notes instances where both the nature of the document and redactions are self-evident and that they provide documents in
electronic bundles so particular exemptions can be located in seconds.
Timeframes for providing responses
• Express concerns about the position where further time is only provided in ‘extenuating’ circumstances (in this case, referring to the Direction
concerning provision of sample documents). Suggest extensions should be provided where appropriate. Notes issues such as the
number/sensitivity of documents and the time which has lapsed since the original decision contribute to the work involved in responding to an IC
review.
• Raises concern about the requirement to make an extension request in writing and with supporting evidence: states that this overlooks ‘utmost’
efforts towards compliance, competing priorities and factors beyond control.
15
Agency
Comments
Limit on submissions after initial exchange:
• Suggests less prescriptive wording, as the circumstances set out in the Direction are not the only circumstances where it might be appropriate to
allow a party to make further submissions.
Request to make submissions in confidence
• Expresses lack of understanding as to why this request must be made before providing the submission. Submits that request for confidentiality and
a submission could be made at the same time without affecting the OAIC process for dealing with these submissions.
Timeliness of IC Applications
• Referring to the strict timeframe which are proposed for agencies, suggests consideration as to whether an applicant’s delay in seeking a review will
be a ground for providing an agency with additional time to respond, noting that it is more difficult to respond to aged matters.
Participation in IC review – ‘failure to engage’
• Clear enforceable requirements on applicants will assist in making consultations meaningful and productive.
• Provide further information to applicants on what is a failure to engage.
• A failure to provide the information required of an IC applicant in the Direction should be a ‘failure to engage’.
• Provide applicants with details about expectations around engagement with the agency and that attending a meeting with no intention to attempt
towards resolution is not considered appropriate ‘engagement’.
Attorney-
Timeframes, steps in the process, transparency
General’s
• Suggests greater clarity concerning the time-frames that apply to the OAIC.
Department
•
(AGD)
The order in which certain steps are to occur in the IC process is unclear (in particular, where the s 54Z notice fits in with other steps).
• Detail about certain steps are not explained in the draft direction. For example, there is no explanation about when the OAIC will endeavour to
D2023/015009
make its decision, nor the timeframe for providing documents to the applicant (if the IC decides to vary the decision) and the timeframe for
destruction or return of evidence documents to agencies for discontinued reviews.
• The OAIC should commit to status updates to agencies in more circumstances than outlined in the guidelines, and at regular intervals.
• Recommends a checklist, or some other method of transparency, about the IC review process. Additional guidance such as a flow chart similar to
t
he AAT flow chart would be useful.
Response to s 54Z notice
• Extensions might be needed more routinely than in ‘extenuating circumstances’. Sometimes agencies have not been notified of IC review
applications for more than 12 months after it was lodged – this additional time means agencies need to re-consult stakeholders on exemption
claims, and there is also the engagement requirement to factor in.
16
Agency
Comments
Engagement requirement
• Where agencies have not been notified of an IC review application, they cannot – as required in the draft direction – contact applicants shortly after
it is lodged (as required in the draft direction).
• Suggests that agencies be provided a copy of the review application close to the time of receipt by the OAIC, so they can be proactive from an
earlier stage. Alternatively, agencies should be made aware the OAIC has received the notice of review and advised when they can expect to receive
a copy.
• The guidance could be read to suggest that the engagement requirement only applies to access refusal or access grant decisions (not deemed
refusals). This would not appear to take into account third-party consultations.
• Without the OAIC’s involvement, or a clear framework to support the engagement process, there is the potential for disputes about what has
occurred and agreed on during the process.
• This process may expose agency staff dealing with abusive applicants to WHS risks.
• Expresses a strong view that there should be discretion as to the engagement method. Verbal engagement may not be practicable, nor the
preference, for applicants who are incarcerated, who are disabled, who are located overseas or who have English as a second language.
• Additional OAIC guidance about the engagement process would be helpful and promote consistency, such as templates and information for
applicants about appropriate conduct (which could potentially mitigate risks to staff).
• Different matters may require different levels of engagement (e.g. deemed refusal compared to a matter where significant negotiation has occurred
under a s 24AB process) – it would be helpful to provide some detail about the kind of engagement required in different circumstances.
Non-compliance with direction – reports to Office of Legal Services Co-ordination
• Non-compliance with the procedural direction may not always amount to non-compliance by the agency with its model litigant obligations.
Suggests some minor language changes.
Format of directions, third parties
• May be simpler and more effective to have a single direction, addressed to both the agency and the applicant.
• Unclear what practice directions (if any) apply to third parties joined to an IC review or whether the process for an IC review in the directions for
agencies and applicants may differ where there are other parties to the review.
Department of
Engagement requirement:
Climate Change,
• Undue administrative burden – creates additional work and increase need for extensions of time, additionally strain its ability to meet its statutory
Energy, the
obligations.
Environment
•
and Water
Increased complexity is exacerbated by notification of IC reviews after significant time has passed since the original decision (staff movements and
(DCCEEW)
Machinery of Government changes increase the challenge of a consultation process).
• Objects to mandatory nature – noting they regularly provide submissions to IC reviews where there is no realistic chance that the review will be
D2023/015095
successful, no benefit in an engagement requirement in these circumstances.
17
Agency
Comments
Section 54Z
• If the engagement requirement is implemented, submits that the proposed 8 week time period is inadequate (presumably referring to s54Z).
Department of
Engagement requirement:
Defence
• May cause delay when there has already been engagement through the internal review process
(Defence)
• It may not be possible to provide further meaningful information to the applicant
D2023/015719
• Suggests optional conferences that can be conducted by any method considered reasonable to the parties, such as email (noting this may also
assist anonymous applicants)
• Parties choosing the method enables agencies to put in place WHS and security protections for staff
• Considers OAIC involvement in conferences vital, also considers that the OAIC should provide parties with an early high-level merits review
assessment and promote informal resolution strategies
• If issues are not resolved through engagement, consider requiring the applicant to advise OAIC of the minister/agency response and why they were
not satisfied
Section 54Z notice:
• An additional 10 business days, in addition to the 8 weeks, should be provided to respond, if engagement with the applicant is required at the start
of the IC review
• Suggests suspension of the notice if an agreement is reached, in conference, that the agency will review the FOI request with a view to providing a s
55G decision
Production of documents:
• Considers requirement for a ‘sufficient representative sample of documents’ to be ambiguous – suggests clarification, for example, by providing a
percentage
• Requests more flexible arrangements for inspection, allowing for inspection at an agency’s premises, for security reasons.
IC application / applicant’s submissions:
• Vital for applicant to articulate their reasons for disagreeing with a particular aspect of the decision at the time they lodge their application – this
would lead to more targeted submissions by agencies/ministers and meet procedural fairness requirements.
• Should be compulsory in the IC application for applicants to identify why an agency’s/minister’s decision is wrong.
Commencement date:
• Requests commencement date after 1 October 2023, given resources/training/processes impacts.
18
Agency
Comments
Department of
Section 54Z notice:
Employment and
• Suggests a 30-day timeframe to make either a revised section 55G decision or provide submissions in support of access refusal of documents, stating
Workplace
this is consistent with other FOI-Act timeframes.
Relations
(DEWR)
Engagement requirement
D2023/015092
• Concerned about the compulsory nature, suggests it be discretionary.
• Applicants may find a forced process of dealing with the agency daunting or frustrating, rather than dealing with the OAIC to which it has applied.
• Where relationship between parties has broken down, this could be unproductive and entrench an applicant in their position, at a point where third-
party intervention by OAIC has been requested and could provide a circuit breaker.
• If this is compulsory, suggests consideration of specified exemptions to deal with the above circumstances.
Department of
Engagement requirement
Foreign Affairs
• Compulsory engagement wil not provide benefits for parties, wil not reduce OAIC or DFAT workload, and may increase burden on agencies’ resources
and Trade
while putting staff at risk. Supports IC encouragement of engagement but not an engagement requirement, including as to engagement method.
(DFAT)
• By the time of an IC review, DFAT has general y exhausted avenues for productive engagement with the applicant.
D2023/015676
• A significant portion of their decisions reviewed by OAIC involve section 33 of the Act and relate to national security or international relations
sensitivities that do not lend themselves to open discussion and negotiation with members of the public.
• Benefit of IC review comes from an external review by a third party- unmediated resolution unlikely to provide more resolution opportunities,
particularly when exemptions are at issue. Also unlikely to be of benefit given the robust decision-making process DFAT uses to ensure that
exemptions are only sought when necessary and defensible.
• Many other IC review matters involve application of s 24 on unreasonable diversion of resources. DFAT always engages on these matters and questions
benefit of further engagement at IC review stage.
• Due to the level of decision-making authority around s55G decisions, FOI decision-makers (SES Band 1 and above at DFAT) would need to be engaged
in negotiations or give detailed advice. This is impracticable and would slow the process - in some cases, making the 8-week deadline impossible.
• WHS issue to expose staff to abusive/intimidating applicants, contrary to recent changes to regulations concerning psychological safety in the
workplace. Engagement requirement also removes DFAT’s use of anonymity to protect FOI staff, who currently do not typical y use their names in
correspondence to avoid this risk. Any new procedure should give agencies the discretion to no longer engage with an individual.
• In some cases, there may be a significant power imbalance.
• Concerned about requirement to provide evidence of engagement.
• Unclear how engagement requirement sits with the proposed process for deemed refusals.
• DFAT would be better able to address applicant’s concerns if al material were provided to the Department as part of the s 54Z process (not only the
notice and the application).
Deemed refusal decisions and time frames
• Deemed refusals usual y involve high complexity or unresolved issues and a three week time frame to respond to IC direction is impractical.
19
Agency
Comments
• Where an agency decides not to make a s 55G revised decision, it wil be extremely time-consuming to provide the IC with the FOI request processing
documents –a significant volume of documents may have been generated in processing the request.
Production of documents – general procedure
• Providing a representative sample of documents in IC reviews involving a charge or practical refusal decision is inconsistent with the purpose of
practical refusal (relating to unreasonable diversion of resources). Processing a representative sample is also an unreasonable diversion, it is also not
clear what wil constitute a representative sample. Practical refusal refers not only to difficulty locating documents but also of processing documents,
and may require significant internal and external consultations, as well as consideration by senior officials. This wil be wasted work if the IC ultimately
decides the practical refusal decision at issue is correct.
• It is not clear what wil happen to these sample documents once they are provided to the IC.
• The samples may attract exemptions, which would not be applied at the time they are provided to the OAIC. Representative samples may also include
documents that would be subject to exemptions under s 33 of the FOI Act and would not routinely be provided in unredacted form to the OAIC.
Confidential submission
• A separate process for obtaining approval for confidential submissions adds to agency and OAIC burdens.
• Presumably the request to provide confidential submissions wil need to be made in the 4-week submission-making period but agencies may not be
able to meet this timeframe and may not be able to obtain extensions of time which wil only be provided in extenuating circumstances.
• Unclear what happens if IC refuses a request for confidential submissions.
Exchange of submissions
• Question fairness of applicants having two opportunities to make submissions (including at initial application) while agencies have one.
Department of
Overview and preference for legislative change
Home Affairs
• Detailed submission which accepts numerous aspects of the draft Directions.
(Home Affairs)
• Recommends elements of the draft direction be removed or rethought particularly where the benefits ‘are unclear and the costs, safety and feasibility
D2023/015089
of implementation are of concern’.
• Suggests proposed changes to the directions would be better effected by legislative changes to sections 54L(2) and 54E to enable FOI applicants’ easier
access to internal review on deemed refused and substantive decisions.
Commencement
• Recommends commencement is negotiated with agencies so there is time for implementation, requiring:
o additional staffing resources.
o staff consultation processes including health and safety assessments
o system changes including ICT.
o staff training including updates to Departmental procedural instructions.
20
Agency
Comments
Engagement requirement
• Recommends al owing agencies to assess where there is value in engaging with an applicant, when there is no risk to staff.
• Proposed value of requirement is unclear and does not offset administrative burden; also impacts timeliness. Benefit is unclear especial y where:
o no substan�ve decision has been made.
o there are exemp�on claims that the applicant disputes and which cannot be resolved.
o there is risk the exempt informa�on could be inadvertently disclosed in conversa�on such as s33 exemp�ons.
o the applicant is unwil ing/unable to revise the scope to resolve prac�cal refusal issues.
o the Department consider al searches have been conducted.
• The Department already engages with review applicants at the ini�al stages of the process where this would assist towards resolu�on. Applicants may
not wish to engage with the Department, hence their applica�on for independent review.
• Unacceptable psychosocial and physical risks to staff when discussing outcomes with disgruntled clients.
• Recommends requirement for telephone/video conference be removed or adjusted. Addi�onal funding needed to implement this including system
supports and staffing resources.
• Recommends removing requirements on agencies to provide evidence of engagement – wil impact �meliness and benefit is unclear.
Section 54Z notice
• Recommends that when the OAIC issues its s 54Z notice, it provides information about the elements of the decision the applicant disputes and any
elements the IC may want specifical y covered. This would aid decision makers to understand concerns and better target the drafting of timely
submissions.
• Accepts the proposed 8 weeks for response to a 54Z no�ce, sta�ng this would o�en remove administra�on of the extension of �me (EOT) process that
occurs under the current 3-week �me period. Requests that further guidance be provided regarding what cons�tutes ‘extenua�ng circumstances’ for
EOT requests.
55(2)(e) direction
• Requests clarity as to what constitutes
'relevant processing documents' (3.3b). It wil add significant strain on officers and increase administration if
this includes al consultation documents and un-redacted exempt documents.
• Sending submissions in support of access refusal to the applicant (3.3c) would lead to further interac�ons with applicants who disagree with their
submissions. This is burdensome and an unreasonable diversion of resources.
Production of documents
• Seeks clarity around the ‘extenuating circumstances’ in which an extension of time would be granted.
Procedure for submissions
Disagrees with requirement for agencies to send submission to applicant. Considers OAIC should do this as the party responsible for conducting the review.
This
avoids client confusion resulting in the OAIC missing out on client responses impacting procedural fairness and decision making.
21
Agency
Comments
• Supports considera�ons of approaches that wil reduce the need for mul�ple submissions for reviews to improve �meliness for all par�es. To be
feasible, the ini�al request for submissions would need to detail the issues at dispute from the client and the IC. There needs to be ability to go beyond
the proposed 4-week period for submissions where circumstances prevent agencies mee�ng this deadline.
Department of
Engagement requirement
Veteran Affairs
• Inconsistent with a trauma-informed approach when interac�ng with veterans. Expresses par�cular concerns about:
D2023/016010
o vulnerable applicants who may not be able to engage in the early resolu�on process without significant support, or at al ; DVA has established
special communica�on arrangements for such clients to beter assist them;
.
o applicants who wish to remain anonymous and do not wish to provide contact details.
• May expose vulnerable applicants and staff to risk of harm.
• Refers to the AAT Alterna�ve Dispute Resolu�on (ADR) Guidelines’ general principles which include the following considera�ons: the capacity of the
par�es to par�cipate effec�vely; cultural factors; safety of the par�es; the context of an applica�on including the history of past applica�ons by the
applicant; rela�ve cost to the par�es of an ADR process and a determina�on.
• Significant addi�onal resources would be required to facilitate conferences, with an es�mated 12 hours to prepare and facilitate a conference. Sets out
a comprehensive breakdown of this �ming at Annexure A. This may impact its significant FOI workload and increase resource pressures.
• To find the balance between ensuring the health and safety of vulnerable applicants with FOI Act objects and �mely/cost-effec�ve informa�on access,
suggests considera�on of excep�ons to the engagement requirement, including for:
o vulnerable applicants;
o circumstances where an agency/minister has engaged in a similar process with an applicant at an earlier stage (clarifying the current
excep�on to this effect);
o other circumstances where there are compelling reasons – suggests a flexible approach similar to the AAT; and that the agency/minister could
provide submissions or evidence outlining why a conference is not appropriate and the mater could proceed to the next stage of the process,
including, e.g. a teleconference between the par�es facilitated by the OAIC.
Section 54Z notice – time-frames
• Recommends that the 8-week �me-frame be extended to 12 weeks. 8 weeks to engage with applicants and provide a response to the OAIC is not
sufficient to consider whether it is appropriate to directly engage with applicants. Given the department’s client base, this wil require a
comprehensive assessment involving not only the FOI team but also poten�ally case managers, clinicians and specialist care providers.
Implementation of the revised Direction from 1 July 2023
• Concerns about ability to comply with Direc�on by 1 July 2023, recommends implementa�on date be extended to at least 1 October . 2023
• DVA wil require �me to establish processes/resources to enable compliance, par�cularly given the vulnerability of many clients who may be on
specialised communica�on arrangements. The department wil need to set up new workflows, likely including policies, frameworks, scripts, case
management and triage processes.
• The OAIC may wish to consider delaying implementa�on un�l a�er the Legal and Cons�tu�onal Affairs References Commitee releases its report on
the opera�on of Commonwealth FOI laws, no�ng that comprehensive inquiry wil consider issues closely aligned with the proposed revisions to the
Direc�on and may recommend further changes to the Informa�on Commissioner.
22
Agency
Comments
Services
Engagement requirement
Australia
• Considers it should be facilitated by an independent third party including due to procedural fairness reasons. Significant administrative burden.
D2023/015091
Fraught approach whereby an agency is both the ADR facilitator and participant – it means agencies will be unable to robustly represent their own
interests.
• Shifts an independent third-party burden onto agencies and does not allow for departure from the process. This is restrictive and unnecessarily
rigid in circumstances where the obligation as a model litigant to engage on a proper basis in ADR already applies.
• There is already engagement with applicants in the initial request and review processes - this takes into account an applicant’s preferred mode of
communication, or access to communication channels. This engagement also takes into account restricted servicing arrangements in place to
counter inappropriate, threatening or aggressive behaviours. Conferencing without third-party facilitation is potentially harmful to staff.
• Where engagement by conference is not appropriate, suggests a suitable alternative is a requirement to notify OAIC of the reasons for
not engaging
in its preferred ADR channels.
• Recognises role for proactive engagement with some applicants, with regard to the individual circumstances of the case (such as deemed refusal
matters).
23
Attachment C
Submissions
The fol owing agencies made submissions:
1. Administrative Appeals Tribunal:
D2023/014318
2. Australian Federal Police:
D2023/015096
3. Australian Tax Office:
D2023/015090
4. Attorney-General’s Department
: D2023/015009
5. Commonwealth Ombudsman
: D2023/015094
6. Department of Climate Change, Energy, Environment and Water:
D2023/015095
7. Department of Defenc
e: D2023/015719
8. Department of Employment and Workplace Relations:
D2023/015092
9. Department of Foreign Affairs and Trade
D2023/015676
10. Department of Home Affairs:
D2023/015089
11. Services Australia
: D2023/015091
Related HTB: Nil
Inquiry into the operation of Commonwealth Freedom of Information (FOI) laws
COMMISSIONER BRIEF Number 16
Information access laws across Australian states and
territories
• Information access laws across Australian states and territories are set out
in the NSW Information and Privacy Commission’s
Compendium of
information access laws across Australian states and territories.
•
Appendix A contains the most recent draft version of the Compendium
(May 2023) with the 2022 amendments to the
Australian Information
Commissioner Act 2010 entered in markup.
•
Appendix B sets out notable or instructive features which may:
o reduce the number of requests received by agencies and ministers
o reduce the length of time to process/decide/edit documents
o reduce the complexity/number of issues raised in IC review
o reflect core principles we seek to enforce in the FOI Guidelines
o further the objects of the Act through mandating specific classes of
documents to be published
o assist in the timely discharge of regulatory functions
o improve trust and confidence in the regulator, and
o improve trust and confidence in the system.
• In seeking to benchmark the OAIC’s performance results with other
regulators, consideration should be given to the various legislative
frameworks that other jurisdictions operate within, some of which do not
feature a push model (a model which mandates the publication of
categories of documents), nor include a mandatory consideration of a
public interest test in deciding whether to refuse or grant access (see for
example,
Freedom of Information Act 1991 (SA) and
Freedom of Information
Act 1982 (Vic)) nor have the ful merits review power that the OAIC has (see
for example
Government Information (Public Access) Act 2009 (NSW).
1
Appendix A
Compendium of informa�on access laws across Australian states and territories - May 2023
Commonwealth
ACT
NSW
NT
QLD
SA
TAS
VIC
WA
LEGISLATION
Freedom of
Freedom of
Government
Information Act
Right to
Freedom of
Right to
Freedom of
Freedom of
Information Act
Information Act
Information
2002 (NT)
Information Act
Information Act
Information Act
Information Act
Information Act
1982 (Cth) (FOI
2016 (ACT)
(Public Access)
2009 (QLD)
1991 (SA)
2009 (TAS)
1982 (VIC)
1992 (WA)
Act)
(ACT FOI Act)
Act 2009 (NSW)
Australian
Government
Information
Information
Commissioner
(Information
Act 2010 (Cth)
Commissioner)
(AIC Act)
Act 2009 (NSW)
OBJECTS
To give the
Provide right of
Open government Contains general
Provides right of
Unqualified
Unqualified right
General right of
To enable the
Australian
access to
information to be
principle of
access unless
objects clause,
of access to
access - limited
public to
community
government
public by:
accountability for
contrary to the
followed by
documents.
only by
participate more
access to
information unless, • authorising
government
public interest.
statement that the
exceptions and
effectively in
information held
on balance, access
and
information –
means by which
exemptions
governing the
by the
would be contrary
encouraging
states that public
the objects are to
necessary for
State and to make
Government of
to the public
the proactive
sector
be achieved
protection of
the persons and
the
interest.
release of
organisations are
includes
essential public
bodies that are
Commonwealth,
information by
required to:
‘conferring on
interests and
responsible for
by:
•
each member of
private and
State and Iocal
Recognise
NSW
make
the public and on
business affairs
government more
importance of
agencies;
available to
MPs a legally
of persons whose
accountable to the
• requiring
public access to
• giving
the public
enforceable right
information is
public by:
agencies to
government
members of
such
to … access ..,
collected and
publish the
information for
the public a
government
• Creating a
subject only to
held by agencies.
information;
the proper
legally
information as
such restrictions
general right of
and
working of
enforceable
is reasonably
access to
possible;
as are consistent
• providing for a representative
right to access
with the public
State and local
right of access democracy.
government
• provide
interest (including
government
to documents.
information;
government
maintenance of
Make available to
documents
Enable public
and
information to
the effective
the public,
• Providing
participation in
• ensuring that
the public
conduct of public
information about
means to
government
access to
promptly; and
affairs through
the operations of
ensure that
processes and
government
• assist the
the free and frank
agencies,
personal
promote
information is
public to
expression of
ensuring rules
information
improved
restricted only
ensure that
opinions) and the
and practices
held by State
decision-making.
when there is
personal
preservation of
affecting
and local
an overriding
information is
personal privacy’.
members of the
government is
Promote
public interest
accurate,
Act states that
public are readily
accurate,
accountability.
against
complete and
nothing in the Act
available.
complete, up
releasing that
up-to-date.
is intended to
Facilitate and
Ensure that, to
information.
to date and not
The Act also
prevent or
promote,
the fullest extent
misleading
(s3)
protects the
discourage the
promptly and at
possible,
privacy of
publication of
the lowest
Compendium of informa�on access laws across Australian states and territories prepared by the Associa�on of Informa�on Access Commissioners
Current as at 26 May 2023
1
Commonwealth
ACT
NSW
NT
QLD
SA
TAS
VIC
WA
government
personal
documents, the
reasonable cost,
• Requiring that
information is
information held
giving of access
the disclosure of
certain
freely and
by public sector
to documents or
information.
documents
publicly
organisations
the amendment
concerning
available to
(s3(b)).
of records
State and local
everyone.
Act does not
otherwise under
government
prevent/discourag
the Act if it is
Facilitate and
operations be
e public sector
proper and
promote,
made available
organisations
reasonable to do
promptly and at
to the public
from publishing,
so or if it is
the lowest cost,
or providing
permitted or
(s3).
disclosure of the
access to
required by any
maximum amount
government
other Act or law.
of government
information
information.
(including exempt
information) or
Ensure personal
correcting
information held
personal
by the
information,
government is
otherwise than
accurate, up-to-
under this Act if it
date and not
is proper to do so
misleading.
or is required or
(s6)
permitted by law
to be done.
But public sector
organisations are
not required to
provide access to
government
information if it is
not in the public
interest to do so.
SECTORS
Australian
Government
Government
Government
Government
Government
State
Government
Most WA State
Government
agencies (s 15)
agencies
agencies
department
ministers
Government
agencies incl.
government
Agencies
Administrative unit Ministers and
Government
Ministers and
Persons who hold agencies
Departments
agencies,
Australian
including
Statutory office-
officers
business
staff or
offices
Ministers
Local councils
Government
departments,
holder and staff
Local councils
divisions
consultants (s13)
established by an Local
Universities
Ministers (s 11
authorities,
Person/body
Local
Act
Government
FOI Act).
Territory authority State owned
Police
boards and
(excluding judicial corporations
declared by the
Government
Administrative
Statutory
commissions
'Prescribed
'Prescribed
council, law
regulations to be
Government
units of the Public
Authorities
authority' (s4 FOI
Contractors
authority'
Ministers
society)
a public sector
Owned
Service
Act):
through contract
organisation (s5)
State and Council = body corporate Local government
Territory
arrangements
Corporation
SA Police
owned
• body
established for a
agencies
instrumentality
(s121)
Appointed or
Subsidiary of a
Councils
companies
corporate or
established under
public purpose
Government
Public universities
unincorporated Territory-owned
Universities
an Act (s5)
per the Act or
corporations
Compendium of informa�on access laws across Australian states and territories prepared by the Associa�on of Informa�on Access Commissioners
Current as at 26 May 2023
2
Commonwealth
ACT
NSW
NT
QLD
SA
TAS
VIC
WA
body
Territory-owned
Public authorities
Holding an office
Owned
Bodies
Public Authorities body
Private sector
established for corporations,
(s4)
under an Act (s5)
Corporation (s14) established or
including
unincorporated by providers of
a public
subsidiary of a
Public Authority
continued in
Tasmania Police
the Governor in
custodial services
purpose
Courts (s4)
Local city and
Territory-owned
Council or by a
town councils,
(including
existence for a
and the University
including prisons
• NBN Co
corporation
Excludes bodies
universities,
public purpose by
of Tasmania
Minister
and prisoner
identified in sch 2 shire councils,
• any other body Of ice of the
hospital and
an Act; bodies
= any other body,
transport
(legislative
agencies
Excludes certain
declared by
Legislative
health services)
subject to control
whether
assembly,
Statutory or
persons and
(see definitions of
the regulations Assembly
or direction by the
incorporated or
assembly,
government
Excluded bodies
bodies (s6)
‘agency’, ‘public
Governor, a
unincorporated,
Norfolk Island (s
Of icers of the
commit ee of
owned
and particular
body or of ice’ and
Minister or other
Specifies that
declared by the
4B FOI Act)
Legislative
either or both of
corporations
functions of
information in the
‘contractor’ in the
bodies to which
instrumentality or
regulations
Glossary to the
Restricted
Assembly
these bodies,
Contractors
possession of a
this Act does not
agency of the
Blanket
FOI Act).
application to
Supreme Court
royal commission,
Minister which
Courts or
apply (s17, Sch 2, Crown or a
exemption for
courts and court
special
does not relate to
Some agencies,
Magistrates Court
tribunals other
part 1 and Sch 2,
council, regional
documents
registrar (s 5 FOI
commission of
the Minister’s
or parts of
than judicial
part 2)
and council
created by the
Act)
ACT Civil and
enquiry are NOT
development
official business
agencies, are
Administrative
a ‘public authority’ functions and
is exempt (s28)
Bureau of
specifical y
Restricted
assessment
Appeals Tribunal
for the purposes
decision-making
Criminal
exempt (Sch. 2).
application to
panels.
of the NSW Act).
functions
Intelligence
tribunals (s 6 and
Board of inquiry
Restricted
NT police force
sch 1 FOI Act)
Judicial
application to
Act does not
courts and
Restricted
commission
Act does not
apply to
tribunals - only
application to the
Royal commission
apply to
documents in the
documents
Governor-
Parliament or
possession of the
related to matters
General and
parliamentary
VIC FOI
of an
Official Secretary
Government
commit ees (s
Commissioner or
administrative
to the Governor-
Ministers (s 14)
5A), nor to the
their office
nature (clause 5
General (s 6A
(excludes
judicial functions
relating to a
of the Glossary).
FOI Act)
information relating
to a Minister’s
of courts and
review of a
An agency if
personal or political
tribunals (s 6).
decision or a
contracted to
activities / created
Some agencies
complaint
perform functions
or received by a
are specifically
or exercise
Minister in the
exempt. Certain
powers of the
Minister’s capacity
information held
agency (s 6C FOI
as a member of the
or compiled by
Act)
Legislative
non-exempt
Note:
Assembly).
agencies is
Excludes certain
specifical y
persons and
exempt.
bodies (s 7 and
(Schedule 2 to
sch 2 FOI Act)
the Act and
Freedom of
Documents to
Information
which access is
(Exempt Agency)
not able to be
Regulations
obtained (s 12
2008).
FOI Act)
Compendium of informa�on access laws across Australian states and territories prepared by the Associa�on of Informa�on Access Commissioners
Current as at 26 May 2023
3
Commonwealth
ACT
NSW
NT
QLD
SA
TAS
VIC
WA
No access to
documents of
certain institutions
(s 13 FOI Act)
JURISDICTION
Right of
External merits
Reviewable
Right to internal
External merits
Review decisions
External merit
amendment or
review of
decisions (s80)
review of original
review of
made by
review of agency
annotation (ss 48, decisions made
Complaints (s17
determination
decisions (s44)
Agencies (s49A)
decisions on
50 FOI Act).
by agencies on
GIIC)
(unless original
Other
Cannot review
access and
Internal review
open access
determination
amendment
Investigation of
applications for
decisions of
decision (ss 53A,
information,
made by or at the
applications (s63).
agency systems,
review in certain
Ministers or
53B FOI Act).
access
direction of the
circumstances
Principal Officers, Make decisions
applications and
policies and
principal officer of
Australian
including
appeal straight to
on other
amendment
practices (s21
the agency). (s
Information
sufficiency of
VCAT on those.
applications in
applications (s
GIIC)
29(6)
Commissioner
search and
relation to
82, Schedule 3).
Investigate
review of agency
Right to seek
deemed refusal
Complaints
timeframes for
and Minister’s
amendment of
(ss45 & 46)
(s61A)
agencies to deal
decisions (Part
Monitor the
agency records (s
with access
VII FOI Act).
operation of the
30). Right to seek
Appeal to
applications and
annotation if
Monitor
the requirements
Complaints and
ACT FOI Act,
Supreme Court
amendment is not
compliance with
to consult third
own motion
including the
on a question of
made (s 37).
professional
parties (s63).
investigations (s
publication of
law
standards (if any)
69 FOI Act).
open access
Agency may
prescribed by the
See also
information and
refuse to deal
Regs (s6C)
‘Functions and
compliance with
with application if
Role of the
Vexatious
Chief Minister’s
it is part of a
Report on
Information
applicant
annual statement
pattern of conduct
operation of FOIA Commissioner’
declarations (s
under s 95 and
that amounts to
(s64)
section.
89K FOI Act).
with the Act
abuse of right of
Merits
generally.
access or is
review/appeal to
made for a
the Administrative
purpose other
Appeals Tribunal
Investigate
than to obtain
(s 57A FOI Act).
complaints about
access to
an agency or
Appeal on a
information. (s
Minister’s action,
question of law to
18(2a)).
or failure to take
the Federal Court
action, in relation
Right to external
of Australia (s 56
to any functions
review by the
FOI Act).
under ACT FOI
Ombudsman. (s
Act (s 69).
39).
Merits review to
the SA Civil and
See also
Administrative
‘Functions and
Tribunal
Role of the
(SACAT).
Information
(Agencies may
Commissioner’
only seek review
section.
Compendium of informa�on access laws across Australian states and territories prepared by the Associa�on of Informa�on Access Commissioners
Current as at 26 May 2023
4
Commonwealth
ACT
NSW
NT
QLD
SA
TAS
VIC
WA
on a question of
law.) (s 40).
PUBLICATION
• Require
Proactive
Requires
• Publication of
• Requirement
• Publication of
• Promotes the
• Publication of
Requires
information
disclosure of
mandatory
specified
for policy
specified
proactive
specified
publication of an
publication
‘open access
proactive release
information
documents to
information
release of
information
up-to-date
scheme (Part
information’ (s 24) of ‘open access
(s11)
be publicly
(s9)
information by
(s7)
information
II, Div 2 FOI
unless the
information’ (s6,
available and
public
statement
Act)
information is
s18) including:
a publication
authorities and
containing
contrary to the
• an agency
scheme to set
Ministers and
specified
public interest
information
out the
provides for 4
information
including a
information.
guide;
classes of
types of
information
disclosure,
description of the
If open access
• certain
available and
incl. required
kinds of
information is not
information
the terms on
and routine
documents
made available
tabled in
which they are
disclosure
usually held by
because it is
Parliament;
available,
• Information
the agency (ss94
contrary to the
• agency’s
including
disclosure
& 96).
public interest
disclosure log
charges
policy is
information,
of its access
• Scheme must
required
Requires public
agency or
applications;
comply with
• Processes in
availability for
Minister must
• register of
the ministerial
place must
inspection and
publish a
government
guidelines –
comply with
purchase of
description,
contracts; and
guidelines set
the guidelines
agencies most up-
grounds for non-
• record of
out the
issues by the
to-date
release,
information not
classes of
Ombudsman
information
information to
statement of
made
(s49)
statement and
be published,
reasons,
available.
each of its internal
as well as the
statement about
Additional open
manuals (ss95 &
operational
97).
review rights
access
requirements
(subject to
requirements
of publication,
Requirements do
exceptions e.g.
(GIPA
including easy
not apply to
endanger life).
Regulation, cl 5)
access
Ministers or
for:
‘exempt
through a
• Ministers;
agencies’.
Commonwealth
ACT
NSW
NT
QLD
SA
TAS
VIC
WA
Compendium of informa�on access laws across Australian states and territories prepared by the Associa�on of Informa�on Access Commissioners
Current as at 26 May 2023
5
• Government
website and
Departments;
regular review
• Statutory
Makes distinction
bodies; and
b/w requirements
for disclosure
• Local councils.
logs of depts. and
Ministers and
those of other
agencies
(requirements per
s78
OVERSIGHT
ACT Legislative
Joint
Legal Af airs and
Crime and Public
Joint Standing
Accountability &
Standing
Assembly
Parliamentary
Community
Integrity Policy
Commit ee on
Oversight
Commit ee on
Public
ACAT (for
Commit ee (s44
Safety Committee Commit ee
Integrity
Commit ee of
Administration,
Ombudsman
GIIC)
(s189)
Parliament
Legislative
review decisions)
Council, WA
Parliament
FUNCTIONS
Information
Review decisions
Promote public
Promote public
Promote greater
Relevant review
Conduct
Promote
Commissioner’s
AND ROLE OF
Commissioner,
made by ACT
awareness and
awareness of Act
awareness of
authority in
independent,
agencies'
main function is to
INFORMATION
FOI and Privacy
Government
objects of Act
objects
operation of the
relation to
external merits
understanding
deal with
COMMISSIONER functions (under
agencies and
(s17)
applications for
Produce annual
Act
determinations
review of agency
and acceptance
the FOI Act and
Ministers (s 82).
external review
Produce annual
reports
Provide guidance
made under the
decisions.
of the Act and the
Privacy Act 1988,
(‘complaints’) of
Grant extensions
reports (s36 GIIC)
on interpretation
FOI Act (s39(1))
Issue guidelines
objects of the Act
AIC Act s 8, 9
Produce special
decisions made
of time (s 42, s
and
Ombudsman
and manual and
(s6C)
and 10).
Report following
reports at the
by agencies on
78).
investigation – to
direction of the
administration of
must make
provide advice to
Report annually
access and
Information
Monitor operation Minister, principal
Minister
Act
annual report on
public authorities
on operation of
amendment
Commissioner
of the ACT FOI
officer, Secretary
Provide
work of his office
on the process of
the Act (s64)
applications under
functions - Report
Develop and
Act, including the
DPC (s24 GI C)
information and
to be laid before
disclosure and in
Provide advice,
the Act.
to the Minister on
issue guidelines
publication of open
assistance to
both Houses of
relation to the
recommendations Commissioner
any matter that
Provide
about FOI access
access information
agencies,
Parliament (s 29
operation of the
to Minister, if
provides
relates to the
information,
and correction
(s 64(1)(c)).
applicants and
of
Ombudsman
Act generally
requested (s6C)
independent
Commonwealth
advice,
and privacy for
third parties with
Act 1972.)
(s49)
merits review of
Government's
Make open
assistance and
public sector
Conduct reviews
access
Minister
Provide training
agency decisions
policy and
access
training to
Provide training
(s49A)
applications
administering the
on the operation
(s63).
practice regarding declarations (s
agencies (s17).
and advice on the
Act must make an of the Act
Investigate
information held
65).
Assist agencies
provisions of the
Monitoring
Other functions
annual report to
complaints (s61A)
by the
Make guidelines
including services Act
application of the
include:
Parliament (s54)
Provide advice,
Government and
(s 66).
to assist with
public interest
Assess proposed
education and
• Ensuring
systems (s 7 AIC
test
Minister
Prepare annual
lodgement,
legislation and
guidance to
agencies are
Act)
administering the
report on the
handling and
relevant policies
Commissioning
Act must, in
agencies in
aware of their
Freedom of
operation of the
processing of
external research
Conduct audits of
consultation with
relation to
responsibilities
Information
ACT FOI Act (s
applications (s17)
and surveys to
records held by
the Ombudsman,
compliance with
and the public
Commissioner
67).
Issue guidelines
monitor
PSOs for
develop and
any professional
are aware of
functions (s8
achievement of
Investigate
and publications
compliance
maintain
standards
their rights
FOI):
the Act’s stated
complaints (s 69). to assist agencies
under the Act
objectives
appropriate
Compendium of informa�on access laws across Australian states and territories prepared by the Associa�on of Informa�on Access Commissioners
Current as at 26 May 2023
6
Commonwealth
ACT
NSW
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QLD
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• promote public
and the public
Research and
Identifying and
training programs
Monitor
• Providing
awareness of
(s17)
monitor FOI and
commenting on
to assist agencies
compliance with
assistance to
Act objects;
Review decisions privacy
legislative and
in complying with
professional
members of
this Act (s54A)
the public and
• assist
of agencies and
developments
administrative
standards
agencies on
agencies to
monitor, audit and elsewhere
changes to
State Records of
Provide advice,
matters
publish
report on the
Make public
improve
South Australia
education to
relevant to the
information;
exercise by
statements about
administration of
assists the
agencies in
agencies of their
the Act
Minister to
FOI Act
• provide
relevant FOI and
relation to the
functions under,
administer the
• Imposing
information,
privacy matters
Decide
Commissioner's
and compliance
legislation
reductions in
advice,
applications for
functions (s6C)
with, the Act (s17) Deal with FOI and
(general advice,
time and
assistance
privacy
extensions of
drafting policy,
Report to
allowing
and training;
Provide reports
complaints
time; Decide
oversight
and
applications for
guidelines,
extensions of
• issue
commit ee if 4 or
recommendations Grant s81 & 81A
financial
information
time for
guidelines;
more FOIC
to the Minister
authorisations to
hardship; Making
sheets, training
agencies to
collect, use or
decisions
deal with
• make reports
(s17)
varying or
government
disclose info in a
overturned by
applications
and
agencies)
Receive notice,
revoking
manner
Tribunal or
under the FOI
recommendati
issue guidelines
declarations
inconsistent with
Supreme Court in
Act
ons to Minister
and models in
under s114 and
or contravene
any 12-month
• Giving
re legislative
connection with
s115 (s129)
IPPs
period (s64A)
approvals to
change or
agency
External review
give access to
administrative
information
Approve by
functions -
documents
action;
guides (s22)
gazettal a Code
investigating and
of Practice (s73)
without
• monitoring,
GIIC or other Acts
reviewing
consulting third
investigating
(s14 GI C and
Serve PSOs with
decisions of
parties in
and reporting
agency head
a compliance
agencies and
certain
on agency
GSE; PFA Act)
notice (s82)
Ministers (s130)
circumstances
compliance;
Produce reports
Performance
(s63).
• review
annually on
monitoring
Commissioner
decisions;
operation of GIPA
functions -
must report
including
• investigations;
(s37 GI C)
annually to
reviewing and
Parliament on the
• collect
Special report to
reporting on
operation of the
information/sta
Parliament (s38)
agencies
Act and
tistics about
compliance with
operations of the
FOI matters
the RTI and IP
Commissioner
for s30 annual
Act; Issue
during the year
report; and
guidelines (s132)
(s111).
• other functions
Report to
Commissioner
conferred on
Parliament on
must publish
the
matters relating to
decisions in full or
Information
a particular
in an abbreviated,
Commissioner
external review
summary or note
by the FOI Act
Report on
form, as is
or other
operations of the
appropriate to
legislation
OIC (s184)
ensure that the
Compendium of informa�on access laws across Australian states and territories prepared by the Associa�on of Informa�on Access Commissioners
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(s8 and 11 AIC
public is
Act)
adequately
informed of the
Information
grounds on which
Commissioner
decisions are
functions in
made (s76(8)).
relation to the
review of the
information
publication
scheme (s 8F FOI
Act)
POWERS OF
Informal and
Grant decision-
General
Commissioner is
Early resolution
In conducting a
General
Commissioner
COMPULSION
lowest
makers’
procedures,
entitled to full and
(s90)
review, the
procedure
has the power to
AND
reasonable cost
extensions of
informality,
free access at al
Procedures within Ombudsman may
reviews and
do all things that
PROCEDURES
objective (FOI Act time to process
substantial
reasonable times
discretion of the
carry out an
complaints to be
are necessary or
objects s 3,
access
merits, determine
to the records or
IC, little formality
investigation into
conducted with as convenient to be
procedures s 55).
applications (s
procedures, not
other things of a
and technicality,
the subject matter
little formality and done for or in
Conduct an IC
42, s 78).
bound by rules of
PSO (s87(d))
not bound by the
of the application
technicality as
connection with
review in
Declare that
evidence (s15
Staff must assist
rules of
(and may
possible (s49H &
the performance
whatever way the
information is
GIIC)
public to exercise
evidence(s95)
exercise the
s61G)
of functions (s64).
Commissioner
open access
Dealing with a
their rights under
investigative
Give directions
FOIC reviews
Commissioner
considers
information (s
complaint:
the Act but must
powers conferred
(s95(2))
bound by rules of
may obtain
appropriate (s
65).
information;
not give legal
on the
natural justice
information from
55(2)(a) FOI Act).
adopt procedures Ombudsman by
discussions;
advice (s88)
(s49H)
such persons and
that are fair;
the
Ombudsman
Give notice to
facilitate direct
sources, and
Make guidelines
Commissioner
ensure
Act 1972,
FOIC power to
require the
resolution;
make such
(s 66).
may delegate any opportunity for
including powers
compel agency to
agency or
investigation (s19
powers or
investigations and
participant to
of a Commission
produce
Minister to
GIIC)
functions but not
inquiries, as
present views
as defined in the
documents (issue
provide an
thinks fit (in order
In undertaking a
Require an
without the
(s97(2)(a) and
Royal
production notice)
adequate
to deal with an
review, the
agency to
approval of the
(b))
Commissions Act
limited to
statement of
external review)
Ombudsman is
produce
Minister (s89)
1972) (s38(5)(a))
investigation of
reasons pursuant
Preliminary
(s70).
entitled to full
information,
Commissioner
complaints (s61J)
to s 26(1) FOI Act
enquiries (s98)
In any
and free access
records, or other
has the power to
FOIC or agency
External review
(s 55E FOI Act)
proceedings
at reasonable
things (s25 GIIC)
compel evidence
Require better
proceedings
concerning a
may apply to
Give notice for a
times to all
Entry powers
(s110A)
reasons (s99)
conducted with as
determination
Supreme Court to
person to give
relevant
(s26 GI C)
little formality and
Commissioner
Access to
made by the
determine
information of a
government
technicality, and
Prevent
must not disclose
documents (s100) agency under the
question of
kind specified in
information of the
with as much
contravention -
exempt
Require access in Act, the burden of
FOIC’s
the notice or to
agency or
expedition, as the
standing to apply
information in
a particular form
establishing that
jurisdiction to
produce
Minister
requirements of
for an injunction
reports, decisions (s101),
the determination
issue production
document/s
concerned (s 68).
the Act and a
and judicial
notice (s61K)
proper
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specified by the
Require a person
review (s28
or any other form
Require search
is justified lies on
In matters before
consideration of
notice (ss 55R,
to give
GIIC)
(s102)
(s102)
the agency (s48)
VCAT the agency
the matters before
55S FOI Act)
information
Formal enquiries
Commissioner
the Commissioner
Require
In conducting a
has the onus to
Require a
relevant to
-powers
can refer
permit.
information,
review, the
establish any
principal officer of
Ombudsman
conferred on a
application back
Commissioner:
documents and
Ombudsman may
exemption was
an agency to
review (s 79).
Royal
to PSO and
•
attendance
require agency to
justified (s55)
is not bound by
produce
Commission for
require a further
(s103)
sort or compile
the rules of
documents that
IC and witnesses
review of its
documents (if
evidence
are claimed to be
Direct decision-
Examining
Furnish info to IC
internal review
agency has failed
• has to ensure
exempt (s 55T
maker, agency,
witnesses (s104)
may furnish
decision (s103(2))
to do so) or
that the parties
FOI Act)
or Minister to
Additional power
undertake
conduct further
information to
CEOs have a
to an external
May only require
to review any
consultations
searches for
Ombudsman;
duty to ensure
review are given
the principal
decision made by relevant to the
information (s
ICAC; DPP; PIC;
their organisation
a reasonable
officer of an
agency or
review that
80).
and agencies (ss
complies with the
opportunity to
agency or a
31-33 GIIC)
standards of
Minister regarding should have been
make
Minister to
records (and
the access
undertaken
submissions to
produce a
Facilitate
archives)
application (s105) (s38(5)((b))
the
document they
informal
management
IC to ensure
Ombudsman
claim is exempt
Commissioner
resolution of
which must be
nondisclosure of
must notify
under the national review matters (s
prepared and
particular
applicant, agency
• may determine
security
80A).
reviewed in
information
and interested
the procedure
exemption (s 33),
for
consultation with
(s108)
persons of
Cabinet
or with the input
Requirement to
determination and
investigations
documents
Require parties
from the
assist during
reasons for
and dealing with
exemption (s 34)
to attend
Commissioner
review (s96)
decision (s38(13))
an external
or Parliamentary
mediation to
(ss137, 138 and
review and give
Budget Office
resolve review
139)
IC must include
any directions
documents
matter (s 81).
reasons for
as to the
exemption (s
decision (s110)
conduct of the
45A) if the
Refer questions
proceedings
Commissioner is
of law to the ACT
not satisfied by
• must provide
Civil and
affidavit or other
reasons for
Administrative
evidence that the
decision
Appeals Tribunal
document is
(ss 70 and 76).
(ACAT) (s 83).
exempt (s 55U
Parties to an
FOI Act)
external review
May order an
may be
agency or minster
represented.
to undertake
Commissioner’s
further searches
decisions are
for documents (s
legally binding
55V FOI Act)
(s76).
Compel a person
to appear before
him or her (s 55W
FOI Act)
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Require evidence
be given on an
oath or
affirmation (s 55X
FOI Act)
REVIEW
IC reviewable
The Ombudsman
Reviewable
90 days for
Reviewable
Review
External review of Reviewable
In dealing with an
POWERS
decision – access can review
decision (s80)
applicants to
decision (defined
determination of
agency decision
decision of
external review,
the Commissioner
Specific review
refusal decisions
decisions:
IC power of
complain to OIC
in Schedule 6)
agency to refuse
on internal review agency (s49A)
may:
powers by
(s 54L FOI Act
•
to make / to
recommendation
from the date of
Must be made
to deal with an
(s 44).
FOIC may
Information
and access grant
not make
in relation to
PSO’s internal
within 20
application (s18).
External review
choose not to
• obtain
Commissioner
decisions (s 54M
open access reviews (ss92,
review
business days
Review of
where: initial
accept or may
information
FOI Act)
information
93, 94) and
notification;
from the date of
determination of
decision made by
dismiss review at
and make
An agency or
publicly
general
60 days to appeal
the writ en notice
agency to refuse
Principal Of icer
any stage if –
inquiries
Minster must
available
procedure (s95)
to the Supreme
of the decision (or access (s20).
of Minister and
frivolous,
• determine the
comply with an IC
under s
Making of a
Court on a matter
within the longer
Review of
therefore internal
vexatious, etc.,
procedure for
review decision (s
24(1)
review application of law only
period the IC
agency’s
review not
failure to
investigating
55N FOI Act)
•
to give
s89 (GIPA)
28 days for
allows) (s88)
determination to
available; the
cooperate, more
and dealing
On receiving an
access to
agency or
appropriate to go
with external
Onus on agency
referral to NTCAT Affirm, vary or set
refuse to amend
FOI request, the
government
Minister has
to Tribunal,
reviews and
to justify (s97(1))
for hearing on
aside and
records (s35).
agency or
information
application by the
substitute
made a decision
review not
give directions
Review of
Minister must no
under s
Onus on
Respondent,
decision (s110)
that the
appropriate in
as to the
agency’s
later than 14 days
35(1)(a)
applicant to
when complaint is
requested
circs, or unable to
conduct of
Decide not to
determination to
after the day the
•
that
establish
substantiated but
information does
contact applicant
proceedings
review or further
refuse to add
request is
government
entitlement to
not resolved by
not exist or is not
(s49G)
• suspend
deal with all or
notation to
received, take al
information
reduction in
mediation
in possession,
inquires,
part of external
records (s37).
Agencies must
reasonable steps
is not held
processing
(s112A(2)) or on
where
investigations
review application
assist FOIC
to notify the
under
charge (97(3))
application from
On application for
insufficiency of
or other
(s94)
(s49I)
applicant that the
s35(1)(b)
Onus on 3rd party the Complainant
external review
search; and
proceedings so
Must give parties
application has
•
to refuse
applicant to justify when the matter
Declare vexatious the Ombudsman
where no
that efforts can
opportunity to
been received (s
access to
non release
is dismissed
applicants (s114)
may confirm, vary decision has
be made to
make written
15(5)(a)) FOI Act)
government
(s97(2))
(s112A(1)(b))
Vary or revoke
or reverse the
been made within
resolve the
determination the
the stipulated
submissions
external review
The
information
IC refusal to
vexatious
subject of the
time
(s49H)
by conciliation
Commissioner
under s
entertain
declaration (s115) review (s38(11)). (s45(1)).
FOIC may
or negotiation
has IC review
35(1)(c)
frivolous,
resolve by
• give directions
functions (Part 7
•
to refuse to
vexatious,
Ombudsman
agreement (s49K)
and do such
FOI Act).
deal with an
misconceived,
cannot make a
access
determination that
FOIC may refer
other things as
The
lacking in
application
access is to be
Review of
back to Agency
Commissioner
Commissioner
substance; or
under s
given to an
delayed decision
for fresh decision
thinks fit
can make a
review would
35(1)(d)
exempt document as a deemed
(s49L)
• nominate a
decision to affirm,
require
•
to refuse to
but may offer
refusal (s46)).
person to act
vary, or set aside
unreasonable and
FOIC may
confirm or
reasons as to
as a conciliator
and substitute an
substantial
Ombudsman may facilitate
deny
why an agency
• require the
access refusal or
diversion of
refer application
negotiated
government
might give access
production of
access grant
resources; failure
back to agency
agreement
information
to the document
information or
decision of an
without
for decision;
(s49N)
documents
agency or
is held under reasonable
despite its
promote
s 35(1)(e)
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Minister (s 55K
•
to refuse to
excuse of co-
exempt status
settlement of an
FOIC may ask
• require a
FOI Act).
amend
operate with IC;
(s38(12)).
application,
agency for
attendance
The
personal
inability to contact
Ombudsman may decline to
explanation re
before the
Commissioner
information
application (s96)
publish reasons
continue where
exemption/s and,
Commissioner
may make
under s
for a
the applicant fails if not satisfied,
to answer
preliminary
61(1)(b)
determination, if
to comply with a
may ask to
questions
inquiries (s 54V
Ombudsman
direction; require
inspect and make • examine a
FOI Act).
The Ombudsman
consider it is in
that further or
copies of review
person under
better reasons for
The
can require a
the public interest
documents
oath or
decision be given;
Commissioner
person to give
or the interests of
(s63C)
affirmation
and decline a
may decide not to
information
the agency to do
• give directions
review on the
FOIC notice of
undertake or
relevant to a
so (s38(14)).
or do things
grounds that it is
decision must set
continue a IC
review (s 79).
Ombudsman may
necessary to
vexatious or
out reasons
review if the IC
comment on any
avoid the
lacking in
(s49P)
review applicant
disclosure of
The Ombudsman
unreasonable,
substance
Decision of FOIC
is frivolous,
exempt matter
can direct an
frivolous or
(s47(1)).
has same effect
vexatious,
or the
agency or
vexatious conduct
as decision of
misconceived,
existence or
Minister to
on the part of
agency (s49P)
lacking in
non existence
conduct further
applicant or
substance or not
of certain
searches (s 80).
agency (s38(16)).
FOIC cannot be a
made in good
party to a review
exempt matter
Ombudsman has
faith (s 54W(a)(i)
by the Tribunal
• require an
power to review a
FOI Act);
but may be called
agency to
fee or charge
applicant’s failure
The Ombudsman
on to assist
conduct
imposed by an
to cooperate in
may refer a
Tribunal in a
additional
agency under s
progressing
question of law to
review (s51)
searches
53 FOI Act (and
application or
the ACT civil and
• review any
in accordance
Power to make
without
Administrative
decision made
with the Freedom
recommendation
reasonable
Appeal Tribunal
by the agency
of Information
on matter arising
excuse (s
(ACAT) (s 83(2)).
in relation to
(Fees and
in review to a
54W(a)(ii) FOI
the access
Charges)
‘relevant
Act); applicant
application and
Regulations
authority’ (s49O)
un-contactable
decide any
2003.). A person
after making all
matter in
can seek a review
reasonable
respect of the
of an agency’s
attempts (s
access
determination of a
54W(a)(ii ) FOI
application that
fee or charge.
Act); failure to
could have
comply with a
A person
been made by
direction of the
dissatisfied with
the agency
Information
the agency’s
• confirm, vary
Commissioner (s
review may seek
or set aside
54W(c) FOI Act)
a further review
agency
from the
decision
Decide not to
Ombudsman.
undertake or
(ss 71 – 76 & 26)
continue an IC
The Ombudsman
review if the
may waive, vary,
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Information
A review
confirm or vary
Commissioner’s
Commission is
participant may
the fee or charge
decision must be
satisfied that the
appeal the
and/or give
in writing
interests of the
Ombudsman’s
directions as to
May decide not to
administration of
decision to the
the payment for a
deal with an
the FOI Act make
ACAT within 20
fee or charge
external review
it desirable that
working days of the
(s53(4).
application or to
the IC reviewable
Ombudsman’s
stop dealing with
decision be
decision (s 84).
the external
considered by the
review application
AAT (s 54W(b) of
because it is
the FOI Act).
frivolous,
Decide not to
vexatious ,
investigate a
misconceived or
complaint made
lacking in
under s 70 (s 73
substance (s67).
FOI Act)
No power to
May by written
make a decision
instrument
to the effect that
declare a person
access is to be
a vexatious
given to an
applicant (s 89K
exempt document
FOI Act)
(s76).
TIME FRAMES
An application for
An application for
Review by
Applicant has
90
Application for
Person aggrieved Application must
Application for
Application for
Review by the
IC review of an
Ombudsman
Information
days after
external review
by a
be made within
review of decision external review to
Information
‘access refusal’
review must be
Commissioner –
reviewing the
must be made
determination of
20 working days
must be received
be lodged within
Commissioner i.e. decision (s 54L)
made within 20
application to be
notice to make a
within
20
an agency
from the date the
within 28 days
60 days after
maximum days to must be made
working days
made within
40
complaint to
business days
following an
decision is
after the day on
being given
escalate matter
within 60 days
after the day
working days
Information
from the date of
internal review
received, or if no
which writ en
written notice of
(external review)
after the notice of
notice of the
after notice of the
commissioner
the writ en notice
may apply to the
decision is
notice in writing is the internal review
the IC reviewable
decision was
decision given to
(s41(b))
of the decision (or Ombudsman for a received, 20
given (s49B)
decision (if access
decision was
published in the
the applicant
within the longer
review of the
working days
applicant) or
given (s 54S(1)
disclosure log
(s90)
period the IC
determination
from the 15
within
30 days if a
FOI Act)
(s74(1)) / the day
An agency’s
allows)
(s38)
working days
Required period
third party (s66).
An application for
notice was given
decision as to the
(s88(1)(d))
Application must
from the date the
for FOIC to
Commissioner to
IC review on an
to the applicant /
validity of an
Within
10
be made within
application for
complete review
make a decision
‘access grant’
the day the
application must
business days
30 days after the
disclosure was
is 30 days or
on an external
decision (s 54M)
decision was
be made and
after the
person received
lodged S44(1).
longer period
review within 30
must be made
taken to be made
notified to the
purported
notification of the
There is no power agreed in writing
days after the
within 30 days
(deemed
applicant as soon
application is
determination
to extend time.
by Applicant
external review
after the notice of
decision).
as practicable
received, the
(s38(3)).
(s49J)
application was
the IC reviewable
Ombudsman can
after the agency
entity must give
Ombudsman has
Complaint must
made unless the
decision was
grant an
receives the
prescribed written a discretion to
be made within
Commissioner
given (s 54S(2)
extension of time
application and in
notice to the
considers that it is
FOI Act)
60 days after the
(s 74(1)(b)).
any event within
5
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An FOI applicant
Ombudsman
working days
applicant of the
extend time
action or conduct
impracticable to
or an affected
must make a
after the
decision. (s32(2))
(s38(4)).
complained of
do so (s76).
third party may
decision on the
application is
Application to
occurred
Agencies must
ask the
review within
30
received. (s51(2))
review an
(s61A(4))
deal with an
Information for
working days (s
Review by the
agency’s
access application
an extension of
82) after the day
Information
determination
as soon as
time to apply for
the application
Commissioner
must be made
practicable or
IC review (s 54T
for Ombudsman
must be
within
30 days
within the
FOI Act)
review was
completed within
after notice of the
“permitted period”
made; or if
40 working days
decision (s39(3))
- 45 days or as
notice to
after the
agreed between
produce
Commissioner
the applicant and
information
receives all
the agency or as
given (s 79) –
information the
allowed by the
the end of the
Commissioner
Commissioner
period in notice.
considers
(s13).
Ombudsman can
necessary to
If applicant does
suspend review
complete the
not receive a
for up to 30
review. (s92A)
notice of decision
working days if
with the time
Ombudsman first
frames outlined in
assists parties to
the Act, they can
informally
seek the next
resolve matter or
level of review
refers parties to
(internal or
mediation (s
external).
82(3).
COMPLAINTS
Investigate
Investigate
Making of a
Complaints may
Onus on agency
Ombudsman may No complaints
Handle
Commissioner is
MANAGEMENT
complaints
complaints
complaint s17
be dealt with
to justify (s87(1))
try to effect a
function under the complaints (s61A) not given express
AND DISPUTE
against agencies
against agencies
(GIIC)
jointly (s104A)
power to
Onus on
settlement
Act, but complaint FOIC may refer
RESOLUTION
in the
or Minister’s in
investigate
Assist resolution,
Accept, reject or
participant
between
can be made
complaint to
POWERS/FUNC
performance of
the performance
expressions of
investigate, refer.
refer a complaint
objecting if
participants to the under the
another body if
TIONS
their functions
of their functions
dissatisfaction
back to the PSO
disclosure
review
Ombudsman Act
more appropriate
under the FOI
under the ACT
Dealing with a
about the way that
within 90 days
decision (s87(2))
(s38(5)(c)(i))
1978. The
to deal with
Act.
FOI Act (s 69).
complaint:
Ombudsman
an agency has
information;
(s106)
IC refusal to deal
(s61C)
dealt with an
Initiate own
The Ombudsman
does not have
discussions;
Refer a complaint
with all or part of
At request of
FOIC may not
access application
motion
can direct an
power, however,
facilitate direct
to Ombudsman,
external review
agency, may
accept or may
except as it
investigations (s
agency or
to investigate a
resolution;
Health
application if
suspend review
dismiss complaint relates to an
69 FOI Act)
Minister to
matter under the
investigation (s19 Complaints
frivolous,
to allow an
at any stage if –
external review
conduct further
Ombudsman Act
GIIC)
Commission or
vexatious,
opportunity for a
frivolous,
before the
searches for
if it could be the
interstate Privacy
misconceived,
settlement to be
vexatious, etc.,
Commissioner.
information (s
Require an
subject of review
Commissioner
lacking in
negotiated
failure to
80).
agency to
under the RTI Act
Commissioner
(s108)
substance; failure (s38(5)(c)(ii))
cooperate, review
produce
((s47(3)).
may use
information,
Investigate an
to comply with
Agency and
not appropriate in
Ombudsman can
conciliation
The Ombudsman
records, or other
accepted
direction by IC;
applicant must
circs, or unable to
promote
dealing with
may assist a
things (s25 GIIC)
complaint (s110)
failure to
cooperate in the
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respondent and
Entry powers
Decide on the
cooperate in
process
settlement of an
contact applicant
external review
applicant to a
(s26 GI C)
release of 3rd
progressing the
(including
application for
(s61B)
applications.
review to resolve
party information
external review
attempts of
review and give
Must dismiss
the matter
Prevent
application
Ombudsman to
directions in this
complaint if
informally (s 80A). contravention -
Decide whether
without
effect a
regard ((s47)).
subject matter
standing to apply
there is sufficient
reasonable
settlement)
for an injunction
prima facie
has been or can
excuse; inability
(s38(7))
The Ombudsman
and judicial
evidence of the
be dealt with as a
to contact
can refer a matter
review (s28
matter
Ombudsman may
review by FOIC
applicant (s94);
for mediation and
GIIC)
complained of
dismiss an
or the Tribunal
substantial and
require parties to
application if
(s61B)
Formal enquiries
Notify parties with unreasonable
attend (s 81).
applicant has
-powers
a written prima
diversion of
FOIC must give
failed to comply
conferred on a
facie decision
resources (s41);
written reasons if
with s38(7)
Royal
complaint
Refer matter to
previous
(s38(8)).
Commission for
dismissed (s61B)
mediation as a
application for
IC and witnesses
Ombudsman
precondition to a
same documents
Complaints
might conciliate a
Furnish info to IC.
Tribunal
(s43)
investigation,
complaint or
IC may furnish
proceeding if not
agencies must
investigate an
information to
already referred
cooperate with
administrative
Ombudsman;
to mediation
FOIC, must be
error on the part
ICAC; DPP; PIC;
during process of
dealt with in
of an agency
and agencies (ss
investigation
private (s61D-F)
administering the
31-33 GIIC)
Conduct the
FOI Act under
FOIC to conduct
mediation and
provisions of the
preliminary
provide mediation
Ombudsman Act
enquiries and
certificate (s111)
1972.
consult with
parties (s61G)
Refer a complaint
to the Tribunal
after receiving an
application from
FOIC must take
the Complainant
reasonable steps
(s112A(1)) or
to resolve
application from
informally (s61G)
the Respondent
Complaint to be
(s112A(2)), both
conciliated if
of which must be
cannot be
made within 28
resolved (s61H)
days of receiving
Procedures if
the decision to
conciliation
dismiss or if not
unsuccessful
resolved by
(s61I)
mediation or
other agreement
FOIC may ask
respectively
agency or
Commissioner
Minister to
must refer the
produce
complaint to the
documents (s61I)
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Tribunal
FOIC power to
(s112A(5)) and
compel
prepare a written
production of
report within 60
documents
days of the
requested under
referral (s112B)
s61I (s61J)
FOIC may make
recommendations
to agency or
Minister re
complaint, if
appropriate
(s61L)
REGULATORY
IC may delegate,
Under s 64(2) of
IC may delegate
Commissioner
IC may delegate
Ombudsman may Ombudsman may FOIC may
Commissioner
POWERS AND
in writing, his or
the Act, the
any function to
may delegate
to a member of
delegate powers
delegate powers
delegate to staff
may, in writing,
DELEGATION
her functions or
Ombudsman may staff or persons
powers and
staff of OIC all or
under section 9 of pursuant to s10 of or persons
delegate to a
powers to a
delegate their
authorised
functions under
any of the
the
Ombudsman
the Ombudsman
engaged under
member of staff
member of staff
powers and
through regs (s13
the Act but must
commissioner’s
Act 1972.
Act.
s6J of FOIA, any
the performance
of the Of ice of
functions to a
GIIC)
not do so without
powers (s145)
functions and
of any of the
the Australian
person mentioned Monitor, audit,
the approval of
Monitor, audit and
powers, except -
Commissioner’s
Information
in s 32 of the
report (s17)
the Minister (s89)
report (s131)
power to make
functions, except:
Commissioner
Ombudsman Act
May require a
decision on
the powers to:
other than:
1989 (ACT).
Education &
General Power to
review; power to
•
advice (s17)
PSO to answer a
do all things
require the
• preparing the
question, produce
make
necessary in
production of
Annual
Issue statutory
a record, or other
recommendation
connection with
the disputed
Report;
guidelines and
thing (s87(e)).
re complaint;
documents
other publications
functions under
power to prepare
• make a decision
• issuing
(ss17, 22)
Commissioner
an Act (s125)
reports required
in relation to an
Guidelines;
has the power to
Review agency
Training,
under Pt VI of
agency’s
• referring a
compel evidence
decisions (s17)
information,
FOIA
decision
question of
(s110A)
assistance and
• review
law to the
Report and
Commissioner
guidance (s128)
exemption
Federal Court
recommend to
can refer
Comment on
certificates
under s 55H of
Minister
application back
legislative and
• delegate
the FOI Act;
proposals for
to PSO and
legislative and
administrative
(ss75, 76, 77 &
• correcting
require a further
administrative
changes (s128)
79).
errors in an IC
review of its
changes (s17)
Review decisions
Governor may
review
internal review
of agencies and
appoint an Acting
decision under
decision (s103(2)
Ministers (s130)
Commissioner,
s 55Q;
where the
Commissioner is
on leave or
unable to perform
the functions of
the office (s59).
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• implementing
notices and
reports ss 89
and 89A of the
FOI Act; and
• making a
vexatious
applicant
declaration
under s 89K of
the FOI Act.
In addition, certain
functions may only
be delegated to an
OAIC staff member
who is an SES
employee:
• making an IC
review
decision under
s 55K of the
FOI Act
• exercising the
discretion not
to investigate
a complaint
under s 73 of
the FOI Act
• notifying on
completion of
an
investigation
under s 86 of
the FOI Act.
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OFFENCE
Of ences:
Knowingly
Unlawful access
A person must
Unlawful access
Protection against A person must
FOIC must
It is an offence for
PROVISIONS
Contravention of
making a decision (s119)
not conceal or
to document
criminal actions
not deliberately
ensure only
a person to gain
AND
s 55R obligation
contrary to the
Concealing or
dispose of govt
(s176)
with respect to
obstruct or unduly specified person
access to a
PROTECTIONS
to produce
Act (s 89 - 100
destroying (s120)
info to prevent
Disclosure or
giving access to a influence a
has access to
document
information and
penalty units).
access or
document (if
principal officer, a docs produced in
containing
Protection breach
taking advantage
documents. 6
correction
person by whom
Minister, a
review or
personal or
of confidence,
of information
months
determination is
delegated officer
complaint.
business
Intentionally
defamation
Person must:
(s179)
imprisonment (s
made honestly
or the
Criminal offence
information about
giving direction to
(s113) criminal
• not breach
Protection
55R(5) FOI Act)
believes that the
Ombudsman in
to intentionally or
another person by
someone else
action (s114),
confidentiality
defamation or
Act permits or
the exercise of
recklessly
deceit (s109).
Contravention of
who is required to
personal liability
provisions of
breach of
requires the
the power to
disclose to non-
s 55W obligation
exercise a
(s115)
s148;
confidence
It is an offence for
determination to
make decisions
specified person
to appear before
function of the
a person to
Obstruct; hinder;
(access s170 and be made) (s51)
(s50(1)).
other than
the Information
Act, contrary to
• not knowingly
conceal, destroy
resist; make false
publication s171
Agency who
Commissioner, 6
the Act (s 90 -100
provide false
Protection in
A person must
or dispose of a
statements;
RTI Act); (s171);
produced the
months’
penalty units).
or misleading
respect of actions
not deliberately
document to
mislead (s43(2)
criminal (access
docs.
imprisonment (s
info;
for defamation or
fail to disclose the
prevent access to
GIIC)
to document s172
55W(3) FOI Act)
Failing to identify
not without
and publication
breach of
subject of an
Penalty: 240
it (s110).
Immunity of IC
confidence in
application where
penalty units or 2
Contravention of
information (s 92
reasonable
s173); personal
Officers of an
and others
certain cases
that person
years prison or
s 55X answering
– 100 penalty
excuse obstruct,
liability (s174)
agency are
(s42;45 GIIC)
(s50).
knows the
both.
truthfully under
units).
hinder or fail to
False or
protected from
information exists
oath or
No powers to
comply with
misleading
Immunity from
No defamation or
defamation,
(s50(2)).
affirmation. 6
bring offence
Commissioner.
liability for
breach of
criminal liability
information
months
proceedings
(s177)
Ombudsman or
Principal Officers, confidence for
and personal
(s28(6) GIIC)
staff for any act or Ministers and the
liability if they act
Commonwealth
ACT
NSW
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QLD
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imprisonment (s
Improperly
Acting unlawfully
Direction to
omission in good
Crown are
giving access to
in good faith
55X(3) FOI Act)
influencing the
(s116)
employee to act
faith (s30(1)
protected against
document (s62)
(ss104-107).
Failure to comply
exercise of a
Ombudsman Act
actions for
Directing unlawful
in particular way
No personal
Commissioner
with a notice
function under
1972).
defamation or
action (s117)
(s175)
liability for making and his or her
issued under s 79 the Act (s 93 -
breach of
Failure to
It is an offence to
complaint (s63B)
staff are protected
by the Information 100 penalty
Improperly
confidence where
produce
obstruct the
No criminal
from personal
Commissioner. 6
units).
influencing (s118)
information has
documents or
Ombudsman in
offence - giving or liability for an act
months
been provided as
Falsely represent
attend
the performance
authorizing
done or omitted to
imprisonment (s
IC or staff; cause
required or
proceedings
of investigative
access (s63)
be done in good
79(5) FOI Act)
Gaining unlawful
inflict or procure
powers under the
permitted by the
faith (s80).
access to
(s178)
Act or where the
FOIC and others
Failure to comply
violence,
Ombudsman Act
government
officer or Minister
not compellable
It is an offence for
with a notice
punishment,
(s 24
information
authorised its
to produce
the Commissioner
issued under s 82
damage,
Ombudsman Act
through deceit or
release in the
documents
or his or her staff
by the Information
disadvantage;
1972).
misleading a
belief that it was
(s63A)
to disclose
Commissioner, 6
dismiss any
person exercising
If Ombudsman or required to be
confidential
months’
employee,
No penalty or
a function under
SACAT forms
provided (s51).
information or
imprisonment (s
prejudice any
offence
the Act (s 94 -100
opinion that there
take advantage of
82(3) FOI Act)
employee’s
Where
provisions for
penalty units).
is evidence that a
it for their own
employment (s43
information has
agencies.
Contravention of
person, being an
benefit (s82).
GIIC)
been provided in
s 83 answering
officer of an
the
It is an offence for
truthfully under
agency, has been circumstances
an agency to fail
oath or
guilty of a breach
referred to above,
to produce
affirmation (s
of duty or of
no person
information or
83(3) FOI Act)
misconduct in
documents,
administration of
concerned in
Protections:
attend before the
the act, may bring providing the
Commissioner or
Claim of legal
evidence to the
information, is
attend conciliation
professional
notice of
guilty of a criminal
(s83).
privilege to
appropriate
offence by reason
documents or
person with a
only of the
information
view to
provision of the
produced for the
disciplinary action information or
purpose of an IC
being taken
authorising that
review (s 55Y FOI
(s39(17), s42).
provision (s52).
Act)
A person acting
Protection for
honestly and, in
persons from
the exercise, or
liability in the IC
purported
review process (s
exercise of
55Z FOI Act)
functions under
Protection from
the Act incurs no
liability relating to
civil or criminal
documents
liability in
produced for an
consequence of
investigation (s
doing so (s52)
85 FOI Act)
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Protection from
civil action in
investigations
under s 70 (s 89E
FOI Act)
General
protection against
civil liability (s 90
FOI Act)
Protection against
civil liability in
particular
situations (s 91
FOI Act)
Protection against
criminal liability (s
92 FOI Act)
REVIEW/APPEA
Application for
Initial access
GIPA formal
FOI application to
Application
FOI request
Fee on
FOI request
Agency fees and
L AVENUE
Information
application to an
access
agency-$30
($46.40);
application fee
application for
application fee
charges
INCLUDING
Commissioner
agency or
application ($30)
$30 fee for access
EXTERNAL
Internal agency
currently $34.25
assessed
as at 1/7/15
FEES AND
review or
Minster: costs
(s41) with
application (no fee
REVIEW:
review (no fee)
Processing
disclosure of
$27.90 (s17)
CHARGES
complaints: free
may apply,
provision for
information -
if only seeking
IC: free
EXTERNAL
charges may also
EXTERNAL
personal
EXTERNAL
depending on the
waiver (s127)
$38.25. There is
REVIEW:
be imposed by
REVIEW:
information about
REVIEW:
amount/pages of
Internal (agency)
NTCAT: fee
agency
provision for
information
IC: free
waiver in certain
FOIC: free
the access
Discretion to not
review ($40) – no
APPEAL:
requested, with
EXTERNAL
circumstances.
TRIBUNAL
applicant).
undertake a
processing
QCAT – applicant
the first 50 pages
Appeal to
REVIEW (no fee).
(VCAT): FEE
Agencies can
review or not to
charges (s87)
appeal question
No fee on
being free of
Supreme Court
Prescribed fees
except if an
impose charges
continue a review
of law (no fee)
applications for
charge (s 104)
External review
on Commissioner
and charges
application from
for dealing with an
if satisfied the
(s119)
external review.
(no fee for
by IC: free
or NTCAT
(s53(1)
‘deemed refusal’
access application
decision should
seeking own
External review
decisions by a
RTI Act
There is no right
by Commissioner
for non-personal
be considered by
Waiver of fees
personal
by NCAT: fee
person aggrieved
Processing
of appeal under
(s49J(2) or
information (s16).
the AAT (s
(s53(2)(a)
information). Can
prescribed under
on
questions of
charge (more
the Act, only a
applicant seeking
54W(b) FOI Act)
Charges must be
apply for fee
the
Civil and
law only (s129)
than 5 hours -
Member of
right to appeal to
own documents.
calculated by an
Commissioner
waiver (s 107).
Administrative
$7.20 for each 15
Parliament
the Supreme
From 1/7/2016 no agency in
can refer
Tribunal
minutes; no
entitlements-
Court on a
fee
accordance with
questions of law
Regulation 2013.
processing
access without
question of law.
FOIC dismisses
the
Freedom of
to → Federal
External review to
charge under RTI
charge unless
No review by IC if
review as more
Information
Court of Australia
Ombudsman: no
Act if document
work generated
decision is or has
appropriate by
Regulations 1993
(s 55H FOI Act)
cost.
contains personal by application
been the subject
information)
more than $1000
Tribunal
(WA).
Apply to Federal
of NCAT review
(s53(2)(b)).
Application to
Internal review
Court for order
(s98)
Access charges
Supreme Court
An aggrieved
directing agency
may apply under
APPEAL:
Referral of
on question of
person may seek
or Minister
RTI Act
systemic issues
Agency →
FOIC’s
internal review of
compliance with
to IC from NCAT
IC referral
SACAT on a
jurisdiction to
an agency’s
IC review
(s111)
question of law
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decision –
Ombudsman
QCAT (no fee)
question of law
issue production
decision (s39) –
application made
review decisions
(s118)
(s40(1)).
notice (s61K)
no fee or charges.
by review
are reviewable by
Application to
Person →
Application fee
External review
applicant or
the ACT Civil and
QCAT – review of
SACAT (s40(2)).
can be waived or
An aggrieved
Commissioner (s
Administrative
decision about
reduced if it
person may seek
55P FOI Act)
A person who is
Tribunal (s 84):
financial hardship aggrieved by a
would cause
external review of
Appeal questions
lodgment fee
(no fee) (s120)
determination of
hardship.
an agency’s
of law to Federal
($384 for person),
Application to
an agency
Access charges
internal review
Court by review
and further costs
QCAT – review of
following internal
can be charged
decision or
party from a
may apply (see
vexatious
review (or where
for searching for
decision of the
decision of the
also s 87).
applicant
decision not
and providing
agency’s principal
Information
declaration (no
eligible for
access to
officer (s65) – no
Commissioner on
fee) (s121)
internal review)
documents as per fees or charges.
an IC review (s
Application to
may appeal
FOI (Access
Commissioner
56 FOI Act)
ACT Supreme
Appeal by
Court: costs apply
applicant of
directly to District
Charges) Regns.
has discretion to
Application to the
as per schedule
QCAT decision
Court (s40(2)).
Access charges
accept an external
AAT – review of
of fees for the
($315.70, s119)
Ombudsman
can be waived or
review application
an Information
Supreme Court
cannot be a party
reduced.
without internal
Commissioner’s
(see also s 88).
to appeal
review having
vexatious
No charge for
proceedings
been applied for
applicant
person who is
(s40(6)).
or completed
declaration under
impecunious
(s66).
s 89K (s 89N FOI
SACAT must
seeking own
Commissioner
Act)
order agency
personal info.
pays other party’s
can make a costs
No charge for
reasonable costs
order on external
searching for
(s40(8)(a)).
review in
MP’s.
exceptional cases
SACAT may
Agency must
(s84).
order that a party
seek a deposit if
pay costs of
Review by the
charges are more
agency, only if
Supreme Court
than $50. Up to
satisfied that the
Parties can
$100 deposit is
party acted
appeal to the
$25. Over $100
unreasonably,
Supreme Court of
deposit is 50% of
frivolously or
WA on any
the charge.
vexatiously
question of law
(s40(8)(b)).
The 45 days for
arising out of the
processing the
Commissioner’s
request starts
decision on an
when the deposit
external review
Proceedings in
is paid.
relating to an
SACAT are to be
access application
commenced
(s85).
within 30 days
after notice of the
Documents do
Commissioner
determination to
not have to be
may refer to the
which the
provided until
Supreme Court
any question of
Compendium of informa�on access laws across Australian states and territories prepared by the Associa�on of Informa�on Access Commissioners
Current as at 26 May 2023
20
Commonwealth
ACT
NSW
NT
QLD
SA
TAS
VIC
WA
proceedings
access charges
law that arises in
relate (s40(3)).
are paid.
the course of
External review
Applicant can
dealing with a
and SACAT
appeal a charge
application for
proceedings are
to VCAT but FOIC external review
not available to
has to first certify
(s78).
an agency or
that the matter is
Supreme Court
person
sufficiently
may make an
simultaneously
important for
order or
(s40(3)).
VCAT to consider
decision
SACAT
per s.50(1)(g).
relating to costs
application fee as
as it thinks fit.
at 1 July 2016
If an agency
$71.60.
appeals a
decision, it
bears its own
costs.
Commissioner
is not liable for
any costs,
except where
the
Commissioner
has referred a
question of law
to the Supreme
Court (s89).
Compendium of informa�on access laws across Australian states and territories prepared by the Associa�on of Informa�on Access Commissioners
21
Current as at 26 May 2023
Other notes:
•
In al jurisdic�ons apart from Victoria and the ACT, the FOI Acts provide for decisions for which internal review may be sought:
o Commonwealth – Part IV
o ACT - the review powers of the Ombudsman replace the internal review process
o NT – s 38
o NSW – s 82
o QLD – s 80
o SA – s 38
o TAS – s 43
o WA – s 39 and s 54
o Victoria – the review powers of the FOI Commissioner replace the internal review process
22
Appendix B
Features for considera�on in state, territory and New Zealand informa�on informa�on access laws
Category
Feature
Jurisdic�on
Benefit
Definition of
Definition of personal information for an individual who is or
ACT
• Reduce the length of �me to
personal
has been an officer of an agency or staff member of a
process/decide/edit
information
Minister, does not include information about (I) the
documents
individual’s position or functions as an officer or staff
• Reduce the
member, or (ii) things done by the individual in exercising
complexity/number of issues
functions as an officer or staff member (
Freedom of
raised in IC review
Information Act 2016 (ACT) Dictionary)
• Reflect core principles we
seek to enforce in the FOI
Definition of personal information excludes information about NSW
Guidelines
an individual (comprising the individual’s name and non-
• Improve trust and confidence
personal contact details, including position title, public
in the system.
functions and the agency in which the individual works) that
reveals nothing more than the fact that the person was
engaged in the exercise of public functions:
Government
Information (Public Access) Act 2009 (GIPA Act)
s 4(3)).
Discussion on
Public interest (
Freedom of Information Act 2016 (ACT) s 16);
ACT
• Reduce the length of �me to
public interest
decision making steps (s 16(1); factors not to be taken into
process/decide/edit
test
account, including whether access to the information could
documents
inhibit frankness in the provision of advice from the public
• Reduce the
service (s 16(2); applicant’s identity, circumstances and
complexity/number of issues
reason for seeking access may be taken into account if the
raised in IC review,
information requested is personal information and the
• Reflect core principles we
personal information is not about the applicant (s 16(3))
seek to enforce in the FOI
Guidelines
Factors to be considered when deciding the public interest
ACT
test (
Freedom of Information Act 2016 (ACT) Schedule 2)
23
Category
Feature
Jurisdic�on
Benefit
Publica�on
Agencies and ministers must make open access informa�on
ACT
• Reduce the number of
publicly available unless it is contrary to the public interest
requests received by agencies
informa�on. In those circumstances, a descrip�on of the
and ministers
informa�on must be published unless there is a legisla�vely-
• Reduce the length of �me to
specified reason not to publish – and the Ombudsman must
process/decide/edit
be told about the decision and reasons.
(Freedom of
documents
Information Act 2016 (ACT) ss 23–24; incoming briefs,
• Reduce the
ques�on �me briefs, Minister’s disclosure log and diary)
complexity/number of issues
Open access requirements for minister (GIPA Regula�on cl 6
NSW
raised in IC review,
and 9).
• Reflect core principles we
Cabinet papers and minutes must be proac�vely released
New Zealand
seek to enforce in the FOI
within 30 business days of final decisions being taken by
Guidelines
Cabinet, unless there is good reason not to publish all or part
• Further the objects of the Act
of the material, or to delay the release (Cabinet Office circular
through manda�ng specific
-CO (23) 4: Proac�ve Release of Cabinet Material: Updated
classes of documents to be
Requirements).
published
Administra�ve
An agency is authorised to release government information
ACT
• Reduce the number of
access
held by the agency to a person in response to an informal
requests received by agencies
request by the person (
(Freedom of Information Act 2016
and ministers
(ACT) s 8).
Oversight
Oversight by a Parliamentary Commitee.
ACT: ACT Legisla�ve Assembly;
• Improve trust and confidence
ACAT (for Ombudsman review
in the regulator
decisions).
• Improve trust and confidence
QLD: Legal Affairs and Community
in the system.
Safety Commitee (
Right to
Information Act 2009 (QLD) s 189).
NSW: Joint Parliamentary
Committee (s44
Government
Information (Information
Commissioner)
Act 2009 (NSW)).
24
Category
Feature
Jurisdic�on
Benefit
SA: Crime and Public Integrity
Policy Committee
TAS: Joint Standing Committee
on Integrity
VIC: Accountability & Oversight
Committee of Parliament
WA: Standing Committee on
Public Administration,
Legislative Council, WA
Parliament
Shared leadership/promo�on of Open Government: NZ
New Zealand
• Improve trust and confidence
Ombudsman, Minister Responsible for State Services and
in the regulator
State Services Commissione
r (publica�on of FOI sta�s�cs)
• Improve trust and confidence
in the system.
Func�ons and
Extensions of time provided by Ombudsman if the applicant
ACT
• Assist in the �mely discharge
role of the
has refused or not agreed to the extension (
(Freedom of
of regulatory func�ons
Informa�on
Information Act 2016 (ACT) s 42).
Commissioner
Inves�gate complaints about an agency or Minister’s ac�on,
ACT
• Improve trust and confidence
or failure to take ac�on, in rela�on to any of the func�ons
in the regulator
(Freedom of Information Act 2016 (ACT) s 69)
• Improve trust and confidence
in the system.
Review, upon applica�on, a decision about making open
ACT
• Improve trust and confidence
access informa�on available
(Freedom of Information Act
in the regulator
2016 (ACT) s 74).
• Improve trust and confidence
in the system.
Make recommendations to agencies (GIPA s 92) including
NSW
• Assist in the �mely discharge
recommendations: that an agency reconsider a matter; as
of regulatory func�ons
to public interest against disclosure; and as to general
• Improve trust and confidence
procedure of an agency (GIPA Act ss 93-95).
in the regulator
25
Category
Feature
Jurisdic�on
Benefit
Requirement to identify opportunities and processes for
QLD
• Improve trust and confidence
early resolution – including mediation – to promote
in the system.
settlement of an external review application (
Right to
Information Act (QLD) s 90).
Provide advice, education and guidance to agencies in
Victoria
• Improve trust and confidence
relation to compliance with any professional standards
in the regulator
(
Freedom of Information Act 1982 (VIC) s 6I(2)(b)).
• Improve trust and confidence
in the system.
Powers of
Declaration that information is open access information
ACT
• Improve trust and confidence
compulsion and
(Freedom of Information Act 2016 (ACT) s 65).
in the regulator
procedures
• Improve trust and confidence
in the system.
Require parties to attend mediation to resolve review
ACT
• Assist in the �mely discharge
matte
r (Freedom of Information Act 2016 (ACT) s 81).
of regulatory func�ons
•
Par�es to a complaint may be represented when required to
WA
Improve trust and confidence
appear (
Freedom of Information Act 1992 (WA) s 70(6)).
in the regulator
•
The decision of the Commissioner is to be regarded as the
WA
Improve trust and confidence
decision of the agency and has effect accordingly (
Freedom of
in the system.
Information Act 1992 (WA) s 76(7))
The Commissioner has to arrange to have his or her decisions WA
published in full or in an abbreviated, summary or note form
whichever is appropriate in order to ensure that the public is
adequately informed of the grounds on which such decisions
are made. (
Freedom of Information Act 1992 (WA) s 76(8))
Review/appeal
Merits review undertaken by Civil and Administrative
NSW
avenue including Tribunal (GIPA Act Pt 5 div 4).
fees and charges
NCAT may refer systemic issues to IC (GIPA Act s 111).
NSW
No review by IC if decision is or has been the subject of NCAT
NSW
review (GIPA Act s 98).
Provides for appeals to the Supreme Court (
Freedom of
WA
26
Category
Feature
Jurisdic�on
Benefit
Information Act 1992 (WA) Division 5)
Informa�on
The Ombudsman may suspend the review process for up to 30 ACT
• Assist in the �mely discharge
commissioner
working days to facilitate media�on
(Freedom of Information
of regulatory func�ons
review �me-
Act 2016 (ACT) s 80A(2)).
• Improve trust and confidence
frames
A statutory 40-day �me-frame for IC review commences when NSW
in the regulator
the IC receives the informa�on necessary to complete the
• Improve trust and confidence
review (GIPA Act s 92A). Extensions are available by
in the system.
agreement with the applicant.
27
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
COMMISSIONER BRIEF Number 17
• Various reports over the past decade have proposed amendments rela�ng to the FOI Act.
A summary of the reports, proposed recommenda�ons and an assessment of whether
they have been implemented are set out at
Appendix A.
• The issues discussed in these reports include:
o a review of the opera�on of the FOI Act or parts of the FOI Act:
Review of Charges under the FOI Act (2011) (OAIC)
Review of the FOI Act (2013) (Hawke review)
o specific recommenda�ons to broaden the remit of a par�cular exemp�on or
exempt par�cular agencies
Review of the FOI Act (2013) (Hawke review) (The FOI Act be amended to
make the Department of the Senate, the Department of the House of
Representa�ves and the Department of Parliamentary Services subject to
the FOI Act only in rela�on to documents of an administra�ve nature. The
FOI Act should also be amended to provide an exclusion for the
Parliamentary Librarian)
Our Public Service Our Future - Independent Review of the Australian
Public Service (2019) (Thodey) (Exempt delibera�ve material from release;
s 47C)
COAG Legisla�on Amendment Bill 2021 (The cabinet exemp�on under s 34
to include ‘na�onal cabinet’)
o specific recommenda�ons to improve culture and transparency in decision-making
and reflect the public interest:
Royal Commission into the Robodebt Scheme (2023 report)
Report – Inquiry into Press Freedom (2021 report)
Inquiry into the impact of the exercise of law enforcement and intelligence
powers on the freedom of the press (2020 report)
• Recommenda�ons that have been implemented or principally given effect relate mainly
to:
o guidance in rela�on to the establishment of administra�ve access schemes
o delegated decision making and
o promo�on of guidance.
See
Appendix B for more detail.
• For specific legisla�ve proposals, see also
‘Comm Brief – Proposed amendments to the
FOI Act’.
1
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
Appendix A: Reports involving the FOI Act
Inquiry
Author
Purpose
Relevant outcome/findings/recommendations
FOI-related recommendations
OAIC submission link
implemented?
Royal
Catherine
The Royal Commission
‘
Closing observation’ that Section 34 of the FOI Act should
Not at this stage – generally, the
The OAIC did not make a public
Commission into Holmes AC
was established by
be repealed and that
Government is considering the
submission.
the Robodebt
SC, Royal
Letters Patent to inquire
recommendations and will provide
Scheme (2023
Commissioner into the Robodebt
the Commonwealth Cabinet Handbook should be amended so
a response in due course.
report)
Scheme.
that the description of a document as a Cabinet document is
no longer itself justification for maintaining the confidentiality of
the document. The amendment should make clear that
confidentiality should only be maintained over any Cabinet
documents or parts of Cabinet documents where it is
reasonably justified for an identifiable public interest reason
(page 657).
Additionally, identified as a barrier to engagement with
Centrelink, the Commission heard evidence of individuals
being advised they needed to apply for documents via FOI,
that there were delays in the documents being released, and
that documents once received were voluminous (page 329).
COAG
Senate
To amend a range of
The Bil lapsed with the dissolution of Parliament on 11 April
No – the Bil lapsed.
Submission 11.pdf
Legislation
Finance and
legislation to reflect the
2022.
Amendment Bil
Public
cessation of COAG and
The OAIC submitted:
2021
Administration the introduction of
•
The expansion of the Cabinet
Legislation
National Cabinet and to
exemption in s 34 to National
Committee
expand the meaning of
Cabinet and its committees would
‘Cabinet’ in several Acts
remove public access to all
to make it clear that
National Cabinet documents
where Commonwealth
falling within that exemption until
legislation has existing
the open access period expires.
provisions to protect
•
Formerly COAG and its
from disclosure the
commit ees were not subject to a
deliberations and
specific exemption in the FOI Act.
decisions of the Cabinet
•
Existing provisions (including
and its commit ees, the
ss 447B and 47C) provide an
same protections apply
adequate framework to balance
to the deliberations and
confidentiality of opinions, advice,
decisions of the National
recommendations and
Cabinet and its
deliberations that occur as part of
commit ees.
government decision making –
including by National Cabinet –
with the public’s interest in and
right to access government-held
information.
2
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
•
The proposed amendments
provide that documents relating
to the National Cabinet would be
exempt from disclosure without
consideration of public interest
factors. The public interest test is
considered at the time a decision
is made and gives effect to the
objects of the FOI Act while
allowing decision makers to
balance any countervailing harm
that may result from giving
access. It enables each
document to be assessed on a
case-by-case basis at a point in
time, and recognises that the
passage of time may reduce the
likely harm resulting from
disclosure.
•
A consequence of the proposed
amendments is that National
Cabinet documents wil be unable
to be accessed by the public for
either 20 or 30 years. The OAIC
recommends that consideration
be given to additional legislative
measures to require proactive
release of some National Cabinet
information. This could include a
legislative commitment to
proactively publishing National
Cabinet and Cabinet information,
such as agendas, summary of
meeting outcomes and key
documents, without revealing the
substance of confidential
deliberations (for example,
through amendments to Part II of
the FOI Act (IPS).
Data Availability
Senate
To inquire into the Bil s
Passed both Houses on 30 March 2022.
No FOI recommendations made.
Submission 16.pdf
and
Standing
proposes to amend the
No FOI recommendations in final report. Recommendation 3
Transparency
Commit ee on
FOI Act to exempt
related to privacy.
The OAIC submitted that the proposed
Bil 2020
Finance and
agencies from the
amendments would effectively exempt
[Provisions] and
Public
operation of the FOI Act
Recommendation 3
any data that government agencies
Data Availability
Administration in relation to specified
The committee recommends that consideration is given to
share with each other through the
and
documents, including
whether amendments could be made to the bil , or further
scheme. This does not extend to
Transparency
documents that were
clarification added to the explanatory memorandum to provide
documents that are outputs within the
(Consequential
shared with or through
additional guidance regarding privacy protections, particularly
meaning of the DAT Bil .
3
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
Amendments)
(April 2021)
agencies under cl 13(1)
in relation to the de-identifying of personal data that may be
Bil 2020
of the DAT Bil , and data provided under the bil ’s data-sharing scheme.
The Explanatory Memorandum notes
that has been enhanced
that agencies may stil grant access to
(for example, integrated
copies of datasets that are held
or cleaned) by an
outside of the DAT scheme.
Accredited Data Service
Provider.
The OAIC is concerned that the
proposal is unnecessarily broad and
risks misalignment with the objects of
the FOI Act to provide a fundamental
legal right to access to documents and
this reduces the information access
rights of individuals, impacting on their
ability to seek access to their own
personal information and understand
how agencies are using this
information.
Existing exemptions under the FOI
Act may apply should an FOI request
for data shared under the scheme be
received (ss 33, 45, 47, 47B, 47D,
47F, 47G, 47H and 47J may be
relevant to consider.
Report – Inquiry
Senate
The Senate referred
Recommendation 2 The committee recommends that the
It appears government have not
It appears we contributed to a broader
into Press
Environment
matters relating to press
Australian Government work with the Office of the Australian
yet responded?:
Press Freedom –
government submission:
Freedom (2021
and
freedom for Inquiry after
Information Commissioner to identify opportunities to promote
Parliament of Australia
D2023/012491
report)
Communicatio
the AFP executed two
a culture of transparency consistent with the objectives of the
(aph.gov.au)
ns References search warrants in
Freedom of Information Act 1982 among Ministers, Senior
48 Public Submissions were lodged to
Commit ee
relation to several
Executive Service and other Freedom of Information decision-
the Inquiry
- Press Freedom
Australian journalists.
makers.
Submissions APH
Terms of reference
include disclosure and
The committee accepted the position presented by the media
public reporting of
that agencies’ treatment of FOI applications impedes the ability
sensitive/ classified
of journalists to report matters of public interest. It considers
information, and the
that this undermines the primary objective of the FOI Act and
adequacy of government its underlying principle of open and transparent government.
referral practices in
relation to leaks of
The committee also endorsed the PJCIS recommendation
sensitive/ classified
(below) about ensuring consistency in the application of FOI
information.;
legislation, however, it expressed its view that that there are
more deeply embedded issues—such as risk aversion—
creating a culture within the public sector that does not value
and is opposed to the release of government information in
appropriate (non-exempted) circumstances.
Inquiry into the
Parliament
Referred by the
Recommendation 16:
The Committee recommends that the
The Governmen
t agrees to this
Information Commissioner appeared
impact of the
Joint
Attorney-General under
Australian Government review and prioritise the promotion and recommendation. In relation to the
before the PJCIS on Friday 7 February
exercise of law
Commit ee on
s 29(1)(b)(ia) of
training of a uniform FOI culture across departments, to ensure OAIC’s role, the Government
2020: preparation brief at
enforcement
Intelligence
the
Intelligence Services that application of the processing requirements and
response states that the OAIC wil
D2020/002011. OAIC public
4
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
and intelligence
and Security
Act 2001. The purpose
exemptions allowed under the Freedom of Information Act
provide guidance and advice to
submissi
on (PDF) and Supplementary
powers on the
(PJCIS)
was to report on the
1982 are consistently applied (page 135-137)
.
FOI practitioners through new and
to submissi
on (PDF)
freedom of the
impact of the exercise of The PJCIS noted stakeholder concerns regarding FOI
updated FOI Guidelines, promoted
press (2020
law enforcement and
requests and the challenges faced by departments in
in ICON newsletters and further
report)
intelligence powers on
balancing transparency with factors that would make the
promotion of the ‘FOI Essentials
the freedom of the
release of information contrary to the public interest.
toolkit for Australian Government
press.
agencies and ministers’.
AGD also address implementation
by OAIC in their
submission to the
FOI Inquiry:
Consistent with this
recommendation, former FOI
Commissioner Hardiman
commenced a programme of work
(with the OAIC’s FOI Branch) to
‘develop a shared culture within
the Australian Government that
supports and encourages
compliance with the FOI Act as
well as the proactive disclosure of
information held by agencies’. This
included strategic engagement
with senior leadership across
Commonwealth agencies to
improve practical administration of
the FOI Act and further work on
updating FOI guidelines to support
practitioner compliance with the
legislation.
Subsequent to the PJCIS
recommendation, the OAIC has
published new guidance for FOI
practitioners including updates to
Parts 3, 4, 10, 11 and 12 of the
FOI Guidelines – which allows for
consistent application of the FOI
Act by practitioners. In December
2022 the Information
Commissioner released for
external consultation a revised
draft guideline relating to the
Information Publication Scheme
(IPS) in Part 13 of the FOI
Guidelines.
5
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
Report of the
Mr Dennis
To examine the
Rec 138 The collection, retention and use of reference
N/A (no change recommended)
D2019/000042
Comprehensive
Richardson
effectiveness of the
information by AUSTRAC, Home Af airs and the AFP should
Review of the
AC
legislative framework for continue to be regulated by the Privacy Act and specific
Legal
the National Intelligence
statutory frameworks.
Submissions were not published.
Framework of
Community (NIC) and
the National
prepare findings and
Rec 84 ASIS, ASIO, ASD, DIO and ONI should continue to be
N/A (no change recommended)
The OAIC submission mainly relates
Intelligence
recommendations for
exempt from the operation of the Freedom of Information Act.
to privacy issues.
Community
any reforms.
Rec 185 The Department Home Af airs, including its
(‘The
Intelligence Division, should remain subject to the Freedom of
However the OAIC indicated in
Richardson
Information Act.
principle support to a submission by
Review)(Decem
the IGIS that they only be required to
ber 2020)
Rec 186 The Freedom of Information Act should be amended
The AGO remains exempt from
provide evidence that addresses the
to remove AGO’s exemption in respect of its non-intelligence
the operation of the FOI Act (see
damage that would, or could
function.
Div 2, Part 1, Schedule 2 to the
reasonably be expected to, arise from
FOI Act). However, s 7(2A) has
the release of material where the
been amended to exclude from
matter involves one or more of the
that exemption information that
agencies the IGIS oversees.
originated/was received from the
Australian Hydrographic Of ice
(part of the AGO) in the
performance of its functions under
subsection 223(2) of the
Navigation Act 2012).
Rec 187 The ACIC should remain subject to the Freedom of
N/A (no change recommended)
Information Act.
Rec 192 The Freedom of Information Act and Archives Act
Section 55ZA has been amended
should be amended so that the IGIS is only required to provide to implement this
evidence that addresses the damage that would, or could
recommendation.
reasonably be expected to, arise from the release of material
where the matter involves one or more of the agencies that the
IGIS oversees.
Our Public
David Thodey
Commissioned by the
Recommendation 8: Harness external perspectives and
Government response to
Appears no OAIC submission was
Service Our
AO and the
Australian Government
capability by working openly and meaningfully with people,
relevant aspect of
lodged
. Submissions | APS Review
Future -
independent
to identify reforms to
communities and organisations, under an accountable Charter
Recommendation 8:
The
Though the AIC emailed David Thodey
Independent
panel of the
ensure the APS is fit-for-
of Partnerships
Government notes the proposal
-
D2019/001023 suggests perhaps the
Review of the
APS review
purpose for the coming
for a new wide-ranging review of
OAIC were not intending providing a
Australian Public
decades, and to guide
Further details around this recommendation include a review
privacy, FOI and record-keeping
submission. The AIC noted ‘we look
Service (2019
future reform activities.
of FOI arrangements:
arrangements. The Government’s
forward to the report and would be
report)
principal focus is to ensure that
interested in feedback about privacy
Government to commission a review of privacy, FOI and
agencies effectively implement
and info access issues themes may be
record-keeping arrangements to ensure that they are fit for the
current requirements, addressing
have been raised’…
digital age, by: supporting greater transparency and
practical problems where required.
disclosure, simpler administration and faster decisions, while
Any further reform to these
protecting personal data and other information, and exempting
arrangements would be
considered separately to the
6
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
material prepared to inform deliberative processes of
Government’s response to the
government from release under FOI (page 122).
APS Review.
Recommendation 11 : Strengthen APS partnerships with
For further information, see:
ministers by improving support and ensuring clear
D2020/010384.
understanding of roles, needs and responsibilities. …
Implementation guidance
•
Exempt deliberative material from release under FOI
(recommendation 8).
Administration of ANAO
To assess the
Recommendation 1 The Of ice of the Australian Information
Implemented – published
D2017/002190 – OAIC comment
the Freedom of
effectiveness and
Commissioner should develop and publish a statement of its
February
2018 Freedom of
March 2017
Information Act
efficiency of entities’
regulatory approach based on an assessment of risks and
information regulatory action policy
1982
implementation of the
impacts associated with entity non-compliance with the
| OAIC
D2017/007979 – Commissioner brief
(September
FOI Act
requirements of the FOI Act.
September 2017
2017)
Suggestion - the ANAO suggested the OAIC consider
Implemented – the OAIC now
developing an approach to verifying the quality of FOI data
compares agencies’ statistics with
reported to the OAIC by entities.
previous years to identify
anomalies and also conducts QA
on data entered within the current
year before accepting it as final.
Inquiry into
Parliamentary
To review the National
The Bil passed both houses on 28 June 2018 and received
The final EM notes the following
Inquiry into national security bil s —
national security Joint
Security Legislation
royal assent on 29 June 2018.
changes were introduced following
submission to Parliamentary Joint
bills
Commit ee on
Amendment (Espionage
the Commit ee stage:
Commit ee on Intelligence and
Intelligence
and Foreign
Proposed consequential amendments to FOI Act are below.
Security | OAIC
and Security
Interference) Bil 2018
… the amendments wil also
(PJCIS)
which proposed
Item 18
improve the ability of persons at
The OAIC suggested that the Bil or
changes to the Criminal
1684. Subsection 78(2) of the
Freedom of Information Act
risk of deprivation of liberty to
Explanatory Memorandum be clarified
Code Act 1995 and the
1982 requires approval to be sought before an authorised
justify their actions and defend the
to explain that the secrecy provisions
Crimes Act 1914 to
person can enter or carry on an investigation at a place
criminal charge against them by
are not intended to impact on the right
June 2018
introduce new offences
referred to in paragraph 80(c) of the Crimes Act (see
creating additional specific
to request access to an individual’s
relating to the secrecy of paragraph 78(1)(a)).
defences applying to the secrecy
personal information under APP 12 of
information.
offences for information dealt with, the Privacy Act, or to obtain access
1685. Declarations were made by the Governor-General under or communicated to, to the
under the FOI Act.
section 80(c) between 1959 and 1986. The declarations,
Australian Information
which mainly relate to Defence premises, are archaic and have Commissioner for the purpose of
not been updated or used for many years. Section 80 of the
the Commissioner exercising a
Crimes Act is being repealed by Schedule 2 of the Bil .
power or performing a function or
duty or dealing with information, or
1686. Item 18 wil repeal paragraph 78(1)(a) to remove the
communicating information, in
reference to paragraph 80(c) of the Crimes Act.
accordance with the
Freedom of
Information Act 1982.
Review of the
Dr Al an
Report was required by
Recommendations
Submissi
on: D2013/000919
Freedom of
Hawke AC
section 93B of the FOI
(December 2012)
7
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
Information Act
Act and section 33 of the
Recommendation 1 – Further
Support
40 recommendations to streamline On 21 October 2013 and 15 April
1982 and
IC Act by then Attorney-
Comprehensive Review
procedures, reduce complexity
2014, the Information and Freedom of
Australian
General Nicola Roxon.
1(a)
The Review recommends
and increase the effectiveness and Information Commissioners provided
Information
that a comprehensive review of the
efficiency of agencies and the
information to the Cth A-G in relation
Commissioner
FOI Act be undertaken.
OAIC – additionally;
to these recommendations:
Act 2010 report
The terms of reference
1(b)
This review might also
recommendations concerning the
D2013/091991; D2014/015194
(2013 report)
were to consider the
extent to which the FOI
consider interaction of the FOI Act with
scope of some FOI exemptions.
and AIC Acts and other
the
Archives Act 1983, Privacy Act
OAIC assessment of
laws provide an effective
1988 and other related legislation.
Rec 3: Delegation of Functions
recommendations in 2018 view
framework for access to
and Powers (Implemented)
(D2018/012248)
government information.
The Review recommends that
Recommendation 2 – Online Status
Support in principle;
section 25 of the Australian
of FOI Reviews and Complaints
resourcing and
Information Commissioner Act
The Review recommends the OAIC
infrastructure
2010 be amended to allow for the
consider establishing an online system required
delegation of functions and powers
which enables agencies and
in relation to review of decisions
applicants involved in a specific FOI
imposing charges under section
review or FOI complaint investigation
29 of the FOI Act.
to monitor progress of the review or
complaint.
Rec 15: Parliamentary
Departments (Partially
Recommendation 3 – Delegation of
Support
Implemented)
Functions and Powers
The Review recommends the FOI
The Review recommends that section
Act be amended to make the
25 of the
Australian Information
Department of the Senate, the
Commissioner Act 2010 be amended
Department of the House of
to allow for the delegation of functions
Representatives and the
and powers in relation to review of
Department of Parliamentary
decisions imposing charges under
Services subject to the FOI Act
section 29 of the FOI Act.
only in relation to documents of an
administrative nature. The FOI Act
Recommendation 4 – Power to
Support; similar
should also be amended to
Remit Matters to Decision-maker for powers exist in the
provide an exclusion for the
Further Consideration
Administrative
Parliamentary Librarian.
The Review recommends the FOI Act
Appeals Act 1975
be amended to provide an express
Rec 21(a): OAIC consider
power for the Information
developing appropriate
Commissioner to remit a matter for
guidance/assistance to encourage
further consideration by the original
agencies to develop administrative
decision-maker.
access schemes
Rec 37: Minimum Timeframe for
Recommendation 5 – Resolution of
Further
Publication of Disclosure Log
Applications by Agreement
consideration
The Review recommends that
The Review recommends the FOI Act
required, including
there should be a period of five
be amended to make it clear that an
terms of agreement
working days before documents
agreed outcome finalises an
released to an applicant are
Information Commissioner review and
published on the disclosure log.
in these circumstances a writ en
8
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
decision of the Information
However, it considers that it would
Commissioner is not required.
be better for this to be set out in
guidelines rather than in the FOI
Act itself and recommends the
Recommendation 6 – Third Party
Further
OAIC consider amending its
Review Rights
consideration
guidelines accordingly.
The Review recommends the FOI Act
required
be amended to provide that only the
applicant and the respondent are
automatically a party to an Information
Commissioner review. Any other
af ected person would be able to apply
to be made a party to the review.
Recommendation 7 – Extensions of Further
Time
consideration
The Review recommends the FOI Act
required, including
be amended to:
relevant oversight
•
remove the requirement to notify
into delay in
the OAIC of extensions of time by processing
agreement; and
timeframes
•
restrict the OAIC’s role in
approving extensions of time to
situations where an FOI applicant
has sought an Information
Commissioner review or made a
complaint about delay in
processing a request.
Recommendation 8 – Agreement to
Support in principle,
Extension of Time Beyond 30 Days
subject to
The Review recommends that section
notification
15AA of the FOI Act be amended to
provide an agency or minister can
extend the period of time beyond an
additional 30 working days with the
agreement of the applicant.
Recommendation 9 – Extension of
Further
Time for Consultation on Cabinet-
consideration
related Material
required
9(a)
The Review recommends the
FOI Act be amended to allow
an agency to extend the
period of time for notifying a
decision on an FOI request by
up to 30 working days where
9
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
consultation with the
Department of the Prime
Minister and Cabinet on any
Cabinet-related material is
required.
9(b)
The Cabinet Handbook
should be revised to accord with this
recommendation.
Recommendation 10 – Two-Tier
Further
External Review
consideration
The Review recommends that the two-
required
tier external review model be re-
examined as part of the
comprehensive review of the FOI Act.
Recommendation 11 – Law
Further
Enforcement and Public Safety
consideration
The Review recommends the
required
exemption for documents affecting the
enforcement of law and protection of
public safety in section 37 of the FOI
Act be revised to include the conduct
of surveil ance, intelligence gathering
and monitoring activities. This revision
should also cover the use of FOI as an
alternative to discovery in legal
proceedings or investigations by
regulatory agencies.
Recommendation 12 – Cabinet
Further
Documents
consideration
The Review recommends the
required
exemption for Cabinet documents be
clarified by including definitions of
‘consideration’ and ‘draft of a
document’.
Recommendation 13 – Ministerial
Further
Briefings
consideration
The Review recommends that the FOI
required
Act be amended to include a
conditional exemption for incoming
government and incoming minister
briefs, question time briefings and
estimates hearings briefings.
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Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
Recommendation 14 – Information
Further
as to Existence of Documents
consideration
The Review recommends that section
required
25 of the FOI Act be amended to cover
the Cabinet exemption.
Recommendation 15 –
Further
Parliamentary Departments
consideration
The Review recommends the FOI Act
required
be amended to make the Department
of the Senate, the Department of the
House of Representatives and the
Department of Parliamentary Services
subject to the FOI Act only in relation
to documents of an administrative
nature. The FOI Act should also be
amended to provide an exclusion for
the Parliamentary Librarian.
Recommendation 16 – Exclusion of
Further
Australian Crime Commission from
consideration
the FOI Act
required
The Review recommends the
Australian Crime Commission be
excluded from the operation of the FOI
Act. Section 7(2A) of the FOI Act
should be amended to refer to an
‘intelligence agency document’ of the
Australian Crime Commission.
Recommendation 17 – Review of
Further
Agencies Listed in Part I of
consideration
Schedule 2 to the FOI Act
required
17(a) The Review recommends the
intelligence agencies remain in
Part I of Schedule 2 to the FOI
Act. The parts of the
Department of Defence listed
in Division 2 of Part I of
Schedule 2 should also
remain.
17(b) Al other agencies currently in
Part I of Schedule 2 should
justify their exclusion from the
FOI Act to the satisfaction of
the At orney-General. If they
do not do this within 12
11
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
months, they should be
removed.
17(c)
The At orney-General
should also consider whether there is
a need to include any other agencies
in Schedule 2.
Recommendation 18 – Criteria for
Further
Assessment of Agencies Exempt in
consideration
Respect of Particular Documents
required
The Review recommends the FOI Act
contain criteria for assessment of
agencies which are exempt from the
FOI Act in respect of particular
documents.
Recommendation 19 – Review of
Further
Agencies Listed in Part II of
consideration
Schedule 2 to the FOI Act
required
19(a) The Review recommends
Section 47 of the FOI Act be
amended to make clear that it
applies to documents that
contain information about the
competitive or commercial
activities of agencies.
19(b Al agencies in Part II of
Schedule 2 to the FOI Act
should justify their exclusion
from the FOI Act to the
satisfaction of the At orney-
General. If they do not do so,
they should be removed from
Part II of Schedule 2.
19(c)
The At orney-General
should also consider whether there is
a need to include any other agencies
in Part II of Schedule 2.
Recommendation 20 – Review of
Further
Agencies Listed in Schedule 1 to
consideration
the FOI Act
required
20(a) The Review recommends
Schedule 1 to the FOI Act be
amended to repeal the bodies
listed, as they no longer exist.
12
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
20(b) The At orney-General should
also consider whether there is
a need to include any
tribunals, authorities or bodies
in Schedule 1.
Recommendation 21 –
21(a): Implemented
Administrative Access Schemes
21(a) The Review recommends the
OAIC consider the
development of appropriate
guidance and assistance to
encourage agencies to
develop administrative access
schemes.
21(b)
While the Review
acknowledges the desirability of
encouraging the use of administrative
access schemes, it does not believe it
appropriate for this to be done by
reintroduction of application fees for
FOI requests.
Recommendation 22 – FOI
22(a): Further
Processing Charges
consideration
22(a) The Review recommends that a
required
flat rate processing charge
should apply to all processing
22(b): Support
activities, including search,
retrieval, decision-making,
redaction and electronic
processing. No charge should
be payable for the first five
hours of processing time.
Processing time that exceeds
five hours but is ten hours or
less should be charged at a
flat rate of $50. The charge for
each hour of processing time
after the first ten hours should
be $30 per hour.
22(b)The current provisions for no
processing charges for access to an
applicant’s personal information and
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Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
for waiver of charges should continue
to apply.
Recommendation 23 – FOI Access
23(a): Further
Charges
consideration
23(a) The Review recommends that a
required
flat rate access charge should
apply to all access supervision 23(b): Support
activities of $30 per hour and
that no other access charges
should apply.
23(b)The current provisions for no
charges for access to an applicant’s
personal information and for waiver of
charges should continue to apply.
Recommendation 24 – Ceiling on
Unsupported by IC
Processing Time for FOI
review/AAT
requests
decisions
The Review recommends introduction
of a 40 hour processing time ceiling for
FOI requests.
Recommendation 25 – Reduction
Further
and Waiver of FOI Charges
consideration
25(a) The Review recommends that
required
an agency should be able to
waive or reduce charges in
full, by 50% or not at all.
However, it considers that it
would be better for these
options to be set out in
guidelines rather than in the
FOI Act itself and recommends
the OAIC consider amending
its guidelines accordingly.
25(b) The Review believes that the
current requirement to consider
whether access to a document would
be in the general public interest or in
the interest of a substantial section of
the public should remain unchanged.
Recommendation 26 – Reduction
Further
Beyond Statutory Timeframe consideration
26(a) The Review recommends
required; note
adoption of a sliding scale for
objects of the Act to
14
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
reduction of charges where
facilitate prompt
decisions are not notified
access at the lowest
within statutory timeframes in
reasonable cost
accordance with
recommendation 6 of the FOI
Charges Review.
26(b)No charge should be payable if
the delay is longer than 30 working
days.
Recommendation 27 – Application
Further
Fees for Information Commissioner
consideration
Review for Review of Access to
required; note
Non-personal Information
objects of the Act
27(a) The Review recommends that
regarding the lowest
an application fee of $400
reasonable cost
apply for a review of an FOI
decision for access to non-
personal information. This fee
would be reduced to $100 in
cases of financial hardship.
27(b) If proceedings terminate in a
matter favourable to the
applicant, a $300 refund would
apply. There would be no
refund of the reduced fee.
27(c) No fee would apply for an
Information Commissioner
review of an access grant
decision by an affected third
party.
27(d) In all other cases, fees would be
payable for Information
Commissioner review of
decisions for access to non-
personal information.
27(e) There would be no remission of
the fee where an applicant has first
sought internal review or where
internal review is not available.
Recommendation 28 – Indexation of Further
Fees and Charges
consideration
The Review recommends that all fees
required; note
and charges are adjusted every two
objects of the Act
years in accordance with the CPI
15
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
based on the federal courts/AAT
regarding the lowest
provision for biennial fee increases.
reasonable cost
Recommendation 29 – Timeframes
Further
for Applicants to Respond to
consideration
Agency Decisions
required; note
29(a) The Review recommends that
objects of the Act
an applicant should be
regarding the lowest
required to respond within 30
reasonable cost
working days after receiving a
notice under section 29(8),
advising of a decision to reject
wholly or partly the applicant’s
contention that a charge
should not be reduced or not
imposed. The applicant’s
response should agree to pay
the charge, seek internal
review of the agency’s
decision or withdraw the FOI
request.
29(b) If an applicant fails to respond
within 30 working days (or such further
period allowed by an agency) the FOI
request should be deemed to be
withdrawn.
Recommendation 30 – Practical
Further
Refusal Mechanism
consideration
The Review recommends section
required, including
24AA(1)(b) of the FOI Act be repealed
obligation on
to make it clear that the practical
agencies to assist
refusal mechanism can only be used
and applicants’
after an applicant has provided
knowledge of
information to identify the documents
documents/agency
sought.
document
infrastructure
Recommendation 31 – Time Periods Further
in the FOI Act to be Specified in
consideration
Working Days
required, noting
31(a) The Review recommends that
impact on FOI
where appropriate, the FOI Act processing
be amended so that time
timeframes around
periods are specified in terms
agency closure
of ‘working days’ rather than
period
calendar days.
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Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
31(b)The timeframe for processing an
FOI request (not taking into account
any extensions of time) should be 30
working days. Provision should be
made to exclude any period in which
an agency is closed such as during the
‘shut-down’ period between Christmas
and New Year.
Recommendation 32 – Repeat or
Further
Vexatious Requests
consideration
The Review recommends the FOI Act
required given that a
be amended to permit agencies to
declaration wil
decline to handle a repeat or vexatious remove a person’s
request or requests that are an abuse
legally enforceable
of process, without impacting on the
right and that the
applicant’s ability to make other
vexatious applicant
requests or remake the request that
declaration power
was not accepted. The applicant can
often resides with
appeal against such a decision to the
the judiciary in other
OAIC.
jurisdictions
Recommendation 33 – Anonymous
Further
Requests
consideration
33(a) The Review recommends the
required
FOI Act be amended so that
an FOI request cannot be
made anonymously or under a
pseudonym.
33(b) It should be necessary for an
applicant to provide an
address in Australia.
Recommendation 34 – Inspector-
Support in principle
General of Intel igence and Security
The Review recommends the FOI Act
and the
Archives Act 1983 be
amended to clarify procedural aspects
concerning the Inspector-General of
Intelligence and Security giving
evidence in FOI and archive matters
before the AAT and FOI matters before
the Information Commissioner.
17
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
Recommendation 35 – Amendment
Further
of Personal Records and the
consideration
Archives Act
required
The Review recommends the FOI Act
be amended to enable a personal
record to be amended when the
amendment is authorised under the
Archives Act 1983.
Recommendation 36 – Single
Further
Website for al Disclosure Logs
consideration
The Review recommends the
required; consider
disclosure log for each agency and
whether other
minister should be accessible from a
jurisdictions’ have
single website hosted by either the
consolidated
OAIC or data.gov.au to enhance ease
websites
of access.
Recommendation 37 – Minimum
Further
Timeframe for Publication of
consideration
Disclosure Log
required
The Review recommends that there
should be a period of five working
days before documents released to an
applicant are published on the
disclosure log. However, it considers
that it would be better for this to be set
out in guidelines rather than in the FOI
Act itself and recommends the OAIC
consider amending its guidelines
accordingly.
Recommendation 38 – Copyright
Support
The Review recommends the
Government consider issues
concerning the interaction of the FOI
Act and the potential impact that
publication of third party material
under the FOI Act may have on a
copyright owner’s revenue or market.
Recommendation 39 – Suspension
Further
of FOI Processing During Litigation
consideration
The Review recommends the FOI Act
required
be amended so that the processing of
18
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
an FOI request is suspended where
the applicant has commenced litigation
or there is a specific ongoing law
enforcement investigation in progress.
Recommendation 40 – Backup
Further
Tapes
consideration
The Review recommends the FOI Act
required in light of
be amended so that a search of a
technological
backup system is not required, unless
advances/use of
the agency or minister searching for
apps/Archives
the document considers it appropriate
guidance regarding
to do so.
document retention
Review of
Terms of reference were
Recommendations
2018 OAIC officers’ It appears Rec 1 has been
The AIC received 23 submissions for
charges under
Prof. John
issued by the Minister
views
implemented – see notes on
consideration, referenced here
the Freedom of
McMil an, then for Privacy and Freedom
Four principles proposed to underpin a (D2018/012248)
PJCIS review implementation
Review of charges under the Freedom
Information Act
Australian
of Information, the Hon
new charges framework: support of a
of Information Act 1982: Report to the
1982: Report to
Information
Brendan O’Connor MP,
democratic right; lowest reasonable
Attorney-General | OAIC
the At orney-
Commissioner to review charges under
cost; uncomplicated administration;
General (2012
the FOI Act.
free informal access as a primary
report)
avenue.
Recommendation 1 – Administrative Support 1.1, 1.2 and
access schemes
1.4; further
1.1
Agencies are encouraged to consideration
establish administrative access
required for 1.3
schemes by which persons may
request access to information or
documents that are open to release
under the FOI Act.
1.2
The details of an
administrative access scheme should
be set out on an agency’s website,
and explain:
• how a person may make a request
for information or documents that
wil be provided free of charge
(except for reasonable
reproduction and postage costs),
and
• the interaction of the
administrative access scheme with
the FOI Act.
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Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
1.3
If an agency establishes an
administrative access scheme that is
notified on its website, a person who
makes an FOI request without first
seeking the same information under
the scheme may be required by the
agency to pay an application fee of
$50.
1.4
No FOI application fee shall
be payable if a person has first applied
under an appropriate administrative
access scheme. The FOI request may
be made either upon receipt of the
agency’s response to the
administrative access request, or after
30 days if no agency response is
received.
Recommendation 2 – FOI
Support 2.5; Further
processing charges
consideration
2.1
The FOI processing charges required for 2.1-2.4
referred to in 2.3 and 2.4 should apply
to all processing activities, including
search, retrieval, decision making,
redaction and electronic processing.
2.2
No processing charge
should be payable for the first five
hours of processing time.
2.3
The charge for processing
time that exceeds five hours but is ten
hours or less should be a flat rate
charge of $50.
2.4
The charge for each hour of
processing time after the first ten
hours should be $30 per hour (or part
thereof).
2.5
No processing charge
should be payable for providing
access to a document that contains
the applicant’s personal information.
Recommendation 3 – FOI access
Further
charges
consideration
3.1
Supervision of an applicant
required for all items
inspecting documents (or hearing or
viewing an audio or visual recording)
should be charged at $30 per hour.
3.2
Providing information on
electronic storage media (such as a
20
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
disk or USB drive) should be charged
at actual cost.
3.3
Postage costs should be
charged at actual cost.
3.4
Printing (including
photocopying and other printed
copying) should be charged at $0.20
per page.
3.5
Transcription should be
charged at actual cost.
Recommendation 4 – FOI
Further
processing ceiling
consideration
4.1
An agency or minister
required for all
should have a discretion to refuse to
items, including
process a request for personal or non-
consideration of
personal information that is estimated
impact on access to
to take more than 40 hours to process. personal information
While the estimate of time would be an
IC reviewable decision, an agency
decision not to process a request
above the 40 hour ceiling would not be
reviewable.
4.2
Before making a decision of
that kind the agency or minister must
advise the applicant of the estimated
processing time and take reasonable
steps to assist the applicant to revise
the request so that it can be processed
in 40 hours or less.
4.3
For the purposes of
exercising this discretion, an agency or
minister may treat two or more
requests as a single request, as
provided for in s 24(2) of the FOI Act.
4.4
The practical refusal
mechanism in ss 24, 24AA and 24AB
of the FOI Act should be repealed.
Recommendation 5: Reduction and
Further
waiver
consideration
5.1
The specified grounds on
required for all items
which an applicant can apply for
reduction or waiver of an FOI
processing or access charge (but not
an FOI application fee) should be:
• that payment of all or part of the
charge would cause financial
hardship to the applicant, or
21
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
• that release of the documents
requested by the applicant would
be of special benefit to the public.
5.2
The options open to an
agency should be to waive the
charges in full, by 50% or not at all.
The decision would be an IC
reviewable decision.
5.3
An agency should also have
a general discretion not to impose or
collect an FOI application fee or
processing or access charge, whether
or not the applicant has requested it to
do so. The exercise of that discretion
should not be an IC reviewable
decision.
Recommendation 6 – Reduction
Further
beyond statutory timeframe
consideration
6.1
Where an agency fails to
required for all items
notify a decision on a request within
the statutory timeframe (including any
authorised extension) the FOI charge
that is otherwise payable by the
applicant should be reduced:
• by 25%, if the delay is 7 days or
less
• by 50%, if the delay is more than 7
days and up to and including 30
days
by 100%, if the delay is longer than 30
days.
Recommendation 7 – Internal and
Support 7.1, 7.2,
IC review fees
7.4; Further
7.1
No fee should be payable
consideration
for an application for internal review.
required of 7.3
7.2
No fee should be payable
for an application for IC review of an
internal review decision or a deemed
affirmation on internal review.
7.3
An application fee of $100
should be payable for IC review if an
applicant who can apply for internal
review has not done so first. The fee of
$100 should not be subject to
reduction or waiver.
22
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
7.4
No fee should be payable
for an application for IC review of a
decision of a minister, the principal
officer of an agency, or a deemed
decision of an agency to refuse access
to a document or to refuse to amend
or annotate a personal record. No fee
should also apply to an application for
IC review by a third party of a decision
to grant access to the FOI applicant.
Recommendation 8 – Indexation
Further
8.1
Al FOI fees and charges
consideration
should be adjusted every two years to
required for all items
match any change over that period in
the Consumer Price Index, by
rounding the fee or charge to the
nearest multiple of $5.00.
Recommendation 9 – Responding
Further
to an agency decision
consideration
9.1
An applicant should be
required for all items
required to respond within 30 days
after receiving a notice under s 29(8),
advising of a decision to reject wholly
or partly the applicant’s contention that
a charge should not be reduced or not
imposed. The applicant’s response
should agree to pay the charge, seek
internal review of the agency’s
decision or withdraw the FOI request.
9.2
If an applicant fails to
respond within 30 days (or such
further period allowed by an agency)
the FOI request should be deemed to
be withdrawn.
o
23
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
Appendix A: Implemented recommenda�ons
Report
Recommenda�on
OAIC guidance
Review of Charges under the FOI Act (2011)
Rec 1: Establishment of administra�ve access schemes
Administra�ve access
(OAIC)
Review of the FOI Act (2013) (Hawke
Rec 3: Delega�on of Func�ons and Powers
Sec�on 25 of the
Australian Information Commissioner Act 2010 was amended by
review)
the
Privacy Legislation Amendment (Enforcement and Other Measures) Act 2022
The Review recommends that sec�on 25 of the Australian Informa�on
with effect from December 2022. Sec�on 25(2) now permits the Informa�on
Commissioner Act 2010 be amended to allow for the delega�on of func�ons and
Commissioner to delegate the decision-making under ss 73 and 55K to employees
powers in rela�on to review of decisions imposing charges under sec�on 29 of the
at the Senior Execu�ve Service level. This delega�on can be exercised by the
FOI Act.
Assistant Commissioner, Freedom of informa�on, subject to business rules effec�ve
from March 2023.
Rec 15: Parliamentary Departments
From approximately 1 July 2013, the Department of the House of Representa�ves,
the Department of the Senate and the Department of Parliamentary Services are
The Review recommends the FOI Act be amended to make the Department of the
excluded from the applica�on of the FOI Act, under s. 68A of the
Parliamentary
Senate, the Department of the House of Representa�ves and the Department of
Service Act 1999.
Parliamentary Services subject to the FOI Act only in rela�on to documents of an
administra�ve nature. The FOI Act should also be amended to provide an exclusion
for the Parliamentary Librarian.
Rec 21(a): OAIC consider developing appropriate guidance/assistance to encourage
Administra�ve access
agencies to develop administra�ve access schemes
Rec 37: Minimum Timeframe for Publica�on of Disclosure Log
See Part 14 of the FOI Guidelines:
The Review recommends that there should be a period of five working days before
documents released to an applicant are published on the disclosure log. However,
14.13Agencies and ministers must publish information on the disclosure log within
it considers that it would be beter for this to be set out in guidelines rather than in
10 working days of giving the FOI applicant access to the document (s 11C(6)) (see
the FOI Act itself and recommends the OAIC consider amending its guidelines
[14.30] below). Where a person requests access to information not published on
accordingly.
an agency’s disclosure log (s 11C(3)(c)), the agency or minister should provide
access to the information within a reasonable period, which should be no more
than 5 working days after receiving the request.
Report – Inquiry into Press Freedom (2021
Rec 16: The Commitee recommends that the Australian Government review and
Subsequent to the PJCIS recommenda�on, the OAIC has published new guidance
report)
priori�se the promo�on and training of a uniform FOI culture across departments,
for FOI prac��oners including updates to Parts 3 (processing) 4 (charge), 10 (IC
to ensure that applica�on of the processing requirements and exemp�ons al owed
review), 11 (Complaints), 12 (vexa�ous applicant declara�on), 13 (IPS) and 14
under the Freedom of Informa�on Act 1982 are consistently applied (page 135-
(Disclosure log) of the
FOI Guidelines – which allows for consistent applica�on of
137).
the FOI Act by prac��oners. The OAIC has also released for external consulta�on
and feedback: Part 5 (Exemp�ons), Part 6 (Condi�onal exemp�ons), Part 9 (Internal
review).
24
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1
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
COMMISSIONER BRIEF
Number 18
Proposed amendments to the Freedom of Information Act 1982 from 2018
• This brief provides an overview of proposed amendments to the FOI Act
received from 2018. The amendments are listed chronological y by date
of consulta�on, with a subject of consulta�on, considera�ons and
comments from the OAIC and whether the amendments to the FOI Act
(or AIC Act) have been implemented.
•
Appendix A sets out instances where the OAIC has proposed
amendments to the FOI Act:
o The OAIC’s proposed amendments have largely been concerned
with amendments to increase the OAIC’s ability to increase its
ability to make decisions under s 55K of the FOI Act or to
streamline the IC review or complaint process.
o The OAIC has also previously proposed legisla�ve amendments in
the context of the 2021
Review of Charges and the 2013 Review of
the FOI Act (Hawke review): see
‘Comm Brief –Reports involving
the FOI Act’.
o The table at Appendix A sets out OAIC proposals into two sec�ons
so that consulta�ons/proposals around delega�ons of FOI Act
powers and func�ons (eventua�ng in an amendment to s 25 of
the Australian Informa�on Commissioner Act in December 2022)
are contained in the first sec�on. The second sec�on addresses
other packages of reforms suggested by the OAIC.
•
Appendix B sets out instances where
the Atorney-General’s
Department has requested the OAIC’s views regarding proposed
amendments to the FOI Act.
o In many circumstances, the OAIC’s views are sought in rela�on to
proposed exemp�ons for classes of documents or for specific
func�ons of an agency.
o The OAIC’s response has depended on the issues raised, no�ng
that in many instances, the OAIC’s view has been that:
Agencies should only be excluded from the opera�on of the
FOI Act in excep�onal circumstances
It is not clear why, on the basis of the informa�on provided
to the OAIC for considera�on, why the exemp�on is
necessary
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Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
There are exis�ng exemp�ons in the FOI Act and no
amendments are necessary.
o The table at Appendix B is set out into two sec�ons: AGD
proposals and reviews, and Bil scru�nies.
o See also
‘Comm Brief – FOI Act Reports’.
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Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
Appendix A: OAIC proposals affec�ng the FOI Act
Date consulted
Subject of consulta�on
FOI Act
AIC Act Considera�ons and OAIC comments (if applicable)
Nature of
TRIM links
Implemented for AIC/
consulta�on
FOI Acts?
Delega�ons of FOI powers and func�ons
Mul�ple: see
Delega�ons of certain FOI Act
Interac�on
Yes: s 25
See below
See below
Yes:
Privacy Legislation
below
powers and func�ons
with FOI Act
Amendment
(Enforcement and Other
17/10/2022
Amendment to the Privacy
Resolve the issue around limi�ng delega�ons to SES.
Discussed in a
Measures) Bil 2022
Legisla�on Amendment
mee�ng with AGD
received assent on 12
(Enforcement and Other
on 17/10/2022
December 2022.
Measures) Bil 2022: delega�ons
05/10/2022 to
Privacy Legisla�on Amendment
AGD-ini�ated discussion about limi�ng delega�ons to
s47C
D2023/018800
The IC may now delegate
17/10/22
(Enforcement and Other
SES (discussion noted in email of 17 October).
certain func�ons to an
Measures) Bill 2022: Delega�ons
AGD administra�ve law sec�on raised concerns with
OAIC staff member who is
the proposed amendments to the delega�ons power
an SES employee:
(specifically, the repeal of ss 25(e), (g), (h) and (l).
• making an IC review
Scru�ny commitees have been raising concerns
decision under s 55K
around the scope of delega�ons and their strong
• exercising the
preference is that there is an express limita�on in the
discre�on not to
law that these powers can only be delegated to SES
inves�gate a
officers.
complaint under s 73
Informa�on Commissioner agreed to alterna�ve
• no�fying on
approach seeking a new subsec�on in s 25 of the AIC
comple�on of an
Act that would seek to limit the delega�on of four
inves�ga�on under s
items to SES officers (ss 55K, 70 and 86 of the FOI Act –
86
as wel as s 52 of the Privacy Act – to SES officers only.
9/08/2022 to
Australian Informa�on
s47C
Officer-level
D2023/019337
12/08/2022
Commissioner Act
correspondence
– Delega�ons
from 9 -15 August
2022
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Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
s47C
s47C
s47C
s47C
D2023/018786
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5
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
Internal email
18/3/2021
(Informa�on
Commissioner and
OAIC Execu�ve
members)
19/11/2019
Proposed legisla�ve changes
Mee�ng between Deputy Commissioner and Atorney- Fol owing mee�ng
D2023/018784 -
primarily to Privacy Act but also in
General’s Chief of Staff.
with Chief of Staff – summary
FOI space as fol ows
:
Internal email from Deputy Commissioner Elizabeth
Summary of
• proposals to ensure
Hampton.
mee�ng email on
timely decision-making
19/11/2018
including delegation to
deputies.
• s47C
01/11/2019 and
Reform package proposed by OAIC
Notes that func�ons and powers in rela�on to a
Emails from OAIC to
D2023/018782
27/09/2019
decision not to inves�gate a complaint (
s 73), no�fying AGD EL2 ataching
email of
OAIC iden�fied room for
comple�on of an inves�ga�on (
s 86) and
OAIC documents
1/11/2019
improvement in the FOI
implementa�on no�ces (
s 89) must be exercised by
se�ng out areas for
framework and specified possible
the Commissioner herself. Recommends:
possible
D2023/018781
areas for review
• Amend the AIC Act to provide for the
review/reform.
email of
delega�on of the Informa�on
27/09/2019.
*Other items addressed in this
Commissioner’s powers in inves�ga�ng and
package and set out in reform
declining to inves�gate FOI complaints.
package section below.
• Amend the AIC Act to provide for the
delega�on of the Informa�on
Commissioner’s powers in IC review maters.
• Amend s 25 by removing ss 25(e), (f), (g), (h),
(i), (l) and allow for specific types of decision
to be specified in an instrument.
•
Further OAIC views: the prohibi�on of
delega�on in sec�on 25 (concerning the IC
review decision-making power) means
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Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
IC review decisions can only be made by the
Commissioner. With the extensive range of
func�ons performed by the OAIC requiring
Commissioner involvement, delega�ng the
IC review func�on to senior officers, such as
the Deputy and Assistant Commissioners
would provide for flexibility to resolve
maters in the most efficient and effec�ve
manner into the future. This would be
similar to the posi�on under the Queensland
Right to Information Act 2009. The type of
maters that could be made by a delegated
decision maker could be specified in an
instrument of delega�on.
• Noted that the OAIC suggested as part of the
Hawke Review that more FOI complaint
powers and the IC review power should be
delegable.
12/06/2018
Reform package proposed by OAIC
• Hawke Review Rec 3 (charges only): Amend the
Mee�ng brief to
D2023/018779
FOI Act to provide for the delega�on of the IC’s
then ac�ng
powers in charges, prac�cal refusals and searches Informa�on
Recommended legisla�ve
decisions.
Commissioner
proposals for undertaking more
ahead of mee�ng
efficient IC review and
OAIC response: there is a clear need for the IC
with the Atorney-
inves�ga�ons.
review func�on to be delegable to other senior
General on
officers, such as an Assistant Commissioner. This
12/6/2018
*Other items addressed in this
would offer a significant improvement to the
package and set out in reform
effec�veness of the OAIC and would be similar to
package section below.
the posi�on under the Queensland Right to
Informa�on Act 2009. The type of cases made by
a delegated decision maker would be specified in
any instrument of delega�on.'... There is need for
clarifica�on about delega�on of Commissioner
powers and the interac�on of ss 11 and 12.
[Sec�ons 11 and 12 of the Australian Informa�on
Commissioner Act 2010] - 'These provisions
allows for the delega�on of powers to staff that
cannot be performed by the Privacy or FOI
Commissioners without the approval of the
Informa�on Commissioner.
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Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
•
OAIC sugges�on as part of Hawke Review:
Amend the FOI Act to provide for the delega�on
of the IC’s powers in inves�ga�ng and declining
to inves�gate FOI complaints.
Further detail for mee�ng:
At present func�ons and powers in rela�on to a
decision not to inves�gate a complaint (
s 73),
no�fying comple�on of an inves�ga�on (
s 86)
and implementa�on no�ces and reports to
Ministers (
ss 89, 89A) must be exercised by the IC
or the other Commissioners. The Review
considered that it was appropriate for these
powers to be exercised by Commissioners no�ng
that all other powers in rela�on to complaints are
able to be, and have been, delegated to OAIC
staff.
In an environment with increasing reviews and
complaints, and considering that the OAIC has
had considerable experience in handling
complaints in both FOI and privacy, amending the
FOI Act to allow for the delega�on of the IC’s
powers in rela�on to the inves�ga�on of
complaints would improve efficiency and
�meliness.
Reform packages proposed by OAIC
27/09/2022 to
Law reform: minor amendments
Yes: see
No
OAIC’s proposed minor amendments to FOI Act: see
Mee�ng with
D2023/018579 -
23/02/23
to the FOI Act (set out
below)
below for
below. Dra� provided to Commissioner ahead of
Australian
email ahead of
sec�on
mee�ng with Secretary AGD.
Informa�on
mee�ng
s47C
numbers
Commissioner, FOI
(*
Not clear that all aspects may have been discussed
Commissioner and
D2023/018578 -
at meeting.)
Secretary
email from
AGD.23/02/2023.
Deputy
Commissioner
Previously, AGD
Hampton
asked whether
including dra�
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8
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
a) Minor amendment:
Yes: s 54N
Amendment to s 54N(4)(c) of the FOI Act to remove
there are any minor email to AGD
No
Making an IC review
the reference ‘to an electronic address’ to allow the
legisla�ve
se�ng out minor
applica�on.
Informa�on Commissioner to specify the electronic
amendments to the amendments to
method to receive the IC review applica�on.
FOI Act that might
the FOI Act.
assist the OAIC
(refenced in an
b) Minor amendment:
Yes:
Amendment to the FOI Act to clarify that an agency
email from the
No
Deemed access refusal
ss 15AC(3),
retains decision making power even if they are
Deputy
decision
54D and 54Y.
deemed by law to have refused the request.
Commissioner
dated 27/09/2022).
c)
Minor amendment: Part Yes: s 29
Amend s 29 of the FOI Act to provide that if the
No
payment of charges for
applicant does not pay the charge in ful within 60
FOI request
days of being notified of a decision under s 29(6) that
the FOI request is deemed to have been withdrawn.
d) Minor amendment:
Yes: Part VII
Amend the FOI Act to provide for the resolu�on of IC
No
Resolu�on of IC review
review applica�ons by agreement without requiring a
by agreement
formal IC review decision (consistent with
Recommenda�on 5 of the Hawke Review).
e) FOI minor legisla�ve
Yes: Part VII
Amend the FOI Act to provide that a valid IC review
No
amendment
Review by IC
application cannot be made while an internal review
Division 3
process remains on foot (or until an internal review
f) Concurrent internal and
process is complete, if recommendation below is
external review
accepted).
g) Minor amendment:
Yes ss
Delete ss 54L(2)(a) and 54M(2)(a) of the FOI Act
No
Mandatory internal
54L(2)a)
which provide that a valid application for IC review
review before IC review s 54M(2)(a)
can be made directly without an internal review being
undertaken.
h) Minor amendment:
No
Decline grounds for FOI Yes: s 73
• Broaden s 73 of the FOI Act to include
addi�onal circumstances in which an FOI
inves�ga�ons in the FOI
complaint can be finalised without
Act
conduc�ng or con�nuing to undertake, an
inves�ga�on – including where the
complaint is more appropriately handled as
an IC review
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Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
• Fol owing no�fica�on of the complaint to
the OAIC, the respondent agency has dealt,
or is dealing with the complaint or has not
yet had an adequate opportunity to deal
with the complaint
• Powers should, where appropriate, also be
consistent with powers under s 41 of the
Privacy Act, including where inves�ga�on is
not warranted and where the Informa�on
Commissioner is not able to provide the
outcome that is being sought by the
complainant.
i) Minor amendment:
Yes: s 73 (c)
This amendment seeks to provide the Information
No
Decline grounds for FOI
Commissioner the power to decline to undertake or
inves�ga�ons
continue to undertake an investigation where the
respondent agency: (a) has dealt, or is dealing,
adequately with the complaint; or (i ) has not yet had
an adequate opportunity to deal with the complaint
without having the complainant made a complaint to
the respondent agency first.
s
4
7
C
k)
Minor amendment
No.
Remove the applica�on fee for applicants whose
No
Administrative Appeals Amendment
applica�on for IC review has been declined under s
Tribunal Regulation 2015 to Part 6 of
54W(b) of the FOI Act because the IC reviewable
the
decision is a decision made by the OAIC. It is the view
Administrativ
of the Informa�on Commissioner that it is not
e Appeals
appropriate for her to conduct an IC review, a process
Tribunal
that is intended to provide first �er independent
Regulation
external review, of a decision made by his/her own
2015
agency.
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Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
01/11/2019 and
OAIC iden�fied room for
Yes: see
Yes: see
See below
Emails from OAIC to
D2023/018782
27/09/2019
improvement in the FOI
below
below
AGD EL2 ataching
email of
framework and specified possible
OAIC documents
1/11/2019
areas for review.
se�ng out areas for
possible
D2023/018781
review/reform.
email of
a) Delega�on by
27/09/2019.
Informa�on
Interac�ons Yes: s 25 Set out in
delega�ons sec�on above.
See
delega�ons sec�on
above.
Commissioner
b) s47C
No
c)
Kinds of other
Yes: s 8
No
• Agencies have requested clarity around s 8 which
No
informa�on to be
sets out publication of information requirements
published (IPS)
and in particular the s 8(4) discretion to publish
‘other information’.
• Give the Informa�on Commissioner power to
issue a legisla�ve instrument to specify
classes/categories of addi�onal informa�on.
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Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
d)
Part payment of charges s 29
No
• There is currently no provision in the FOI Act
No
for FOI request (Access
al lowing for finalisation of an FOI request if the
to documents – Charges)
applicant decides not to pay the balance of a
charge after receiving a decision under s 29(6).
As a result, the request could remain on hand
indefinitely
• Amend s 29 to provide that if the applicant does
not pay the charge in ful within 60 days of being
notified of a decision under s 29(6) that the FOI
request is deeemed to have been withdrawn.
e) Resolu�on of IC review
No
by agreement
Part VII
No
• Amend the FOI Act to provide for the resolu�on
of IC review applica�ons by agreement without
requiring a formal IC review decision (consistent
with Hawke Review Recommenda�on 5). This
would assist in more efficient finalisa�on of IC
reviews and provide greater clarity regarding the
finalisation of an FOI request/process.
f)
Concurrent internal and Part VII – Div
No
• Amend the FOI Act to provide that the
No
external review (Review 3
Commissioner must not consider an IC review
by Informa�on
application where a person has sought internal
Commissioner)
review. When applicants apply for both internal
and external review after receiving the primary
FOI decision, this results in confusion, double
handling, and inefficiencies in undertaking both
internal and IC reviews.
g) Hearings for IC reviews s 55B
No
• Amend s 55B of the FOI Act to reflect that
No
hearings wil only be held in unusual
circumstances. Parts 10.63 to 10.66 of the FOI
Guidelines provide that hearings are not
intended to be a common part of IC reviews
because they increase contestability, introduce
more formality and prolong resolution of the
review.
h) Evidence of Inspector-
No
General of Intelligence
ss 33, 55ZA,
• Amend Division 9 of Part VII of the FOI Act so
Yes: s 55ZA. The Na�onal
and Security (IGIS) for s 55ZB, 55ZC,
that evidence is only required to be sought from
Security Legisla�on
33 exempt documents – 55ZD
the IGIS when the documents under review are
Amendment
subject to s 33(1)(a) and (b) (security of the
(Comprehensive Review
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Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
(Review by Informa�on
Commonwealth and defence of the
and Other Measures No.
Commissioner)
Commonwealth) of the FOI Act.
2) Bil 2023 received
assent on 11/08/23.
• Provide the Information Commissioner with a
discretion to request the IGIS to give evidence if
The Bil replaces s 55ZA of
the exempt documents are subject to ss 33(1)(c)
the FOI Act to narrow the
and 33(b), and to consult IGIS as she sees fit.
circumstances in which
• Section 33(1)(c) is the most commonly applied
the IGIS is required to
subsection of s 33. However, it has been the
appear before the
experience of the OAIC that the IGIS wil advise,
Information
under s 55ZAC, that she is not appropriately
Commissioner(see
qualified to give evidence on such matters.
further details in Bill
Scrutiny below).
i) Revising a refusal
s 55G
No
• We request an amendment to s 55G that would
No
decision –
require the agency or minister to make a revised
Commissioner’s consent
decision in relation to a request or an application
(Part VII Review by
under s 48 during an IC review with the
consent
Informa�on
of the Information Commissioner. This
Commissioner)
amendment would make the conduct of IC
reviews and the process of making decisions
under s 55K more efficient.
j) Decline grounds for FOI s 73
No
No
• Broaden s 73 of the FOI Act to include additional
inves�ga�ons (Part VI B
circumstances in which an FOI complaint can be
Inves�ga�ons and
finalised without conducting or continuing to
Complaints)
undertake, an investigation, including where:
- The complaint is more appropriately
handled as an IC review
- Fol owing notification of the complaint to
the OAIC, the respondent agency has
dealt, or is dealing with the complaint or
has not yet had an adequate opportunity
to deal with the complaint
• Powers should, where appropriate, also be
consistent with powers under s 41 of the Privacy
Act.
k) General areas for review
• Examining the language of the FOI Act,
No
iden�fied in resource
particularly in the context of the digital
provided on 01/11/2019
environment (including the use of word
‘information’ rather than ‘document’)
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Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
• Examining domestic and international access to
information legislation to identify provisions
which promote more timely and proactive
publication of documents routinely requested,
for example, Question Time Briefs, ministerial
and senior official diaries etc
• Reviewing the recommendations made by the
Hawke Review undertaken in 2013, including the
recommendation to review agencies listed in
Part 1 of Sch 2 of the FOI Act.
12/06/2018
Recommended legisla�ve
Yes:
Yes: see •
Two items on delega�on of the IC’s powers:
Mee�ng brief to
D2023/018779
See above on
delega�ons
proposals for undertaking more
provisions
delega�on
discussed above in delega�ons sec�on in
then ac�ng
efficient IC review and
unspecified
s
rela�on to Hawke Review Rec 3, and an OAIC
Informa�on
No amendment to FOI
inves�ga�ons.
other than
sugges�on in the Hawke Review.
Commissioner
Act to provide for
those
• Hawke Review Rec 5: Amend the FOI Act to
ahead of mee�ng
resolu�on of applica�ons
interac�ng
provide for the resolu�on of applica�ons for
with the Atorney-
by agreement
with AIC Act
agreement without requiring a formal IC decision General on
in
12/6/2018
delega�ons
s47C
context (see
delega�ons
sec�on
above)
s47C s47C
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Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
Appendix B: Requests for OAIC’s views on proposed amendments
Date consulted
Subject of consulta�on
FOI Act
AIC Act
Considera�ons and OAIC comments (if applicable)
Nature of
TRIM links
Implemented
consulta�on
for AIC/FOI
Acts?
AGD proposals and reviews
16/08/23
Proposed new general secrecy
No
s47C
Nil FOI comments provided.
AGD emailed us
D2023/019505 – email
No
offence
one page outline
from AGD
s47C
for comment
D2023/019508 – FOI
branch considera�on (nil
comments)
30/06/23 to
s47C
FOI Act
AIC Act
• s47C
s47C
D2023/019895 - AGD
No
10/07/23
interac�ons interac�ons
papers
D2023/019897 – OAIC’s
emailed response.
March 2022 -
AGD review into non-
Yes: s 38 s47C
s47C
D2023/016688 Internal
No (however s
04/05/2023
disclosure du�es and secrecy
email to Assistant
29 of the
offences in Commonwealth
Commissioner Rocel e Ago
Australian
legisla�on.
ahead of mee�ng.
Informa�on
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15
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
s47C
• s
Commissioner
This review arose from
4
D2022/005773 AGD Paper
Act was
recommenda�ons made in the
7
amended by the
Parliamentary Joint Commitee
D2022/006548 Execu�ve
Privacy
C
on Intelligence and Security
Brief to Commissioner
Legisla�on
(PJCIS) report on its
Inquiry into
Amendment
the impact of the exercise of
D2022/005771 OAIC
Enforcement
law enforcement and
comments on consulta�on
and Other
intel igence powers on the
paper
Measures) Bil
freedom of the press – in
which passed 12
par�cular Recommenda�ons 6
December
and 7 concerning
2022)
Commonwealth secrecy
provisions and public sector
journalism.
18/01/2023
s47C
No
s47C
s47C
D2023/018581 Response
s4
from OAIC (via template)
7C
)
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16
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
s47C
s47C
s47C
05/08/2021
Legisla�ve reform arising from
Interac�on
No
• Align defini�ons between Archives Act,
Mee�ng with
D2023/018792
No
the Tune Review
(provisions
Privacy Act and FOI – NAA discussed
NAA on 5/8/2021
unspecified)
legisla�ve reform arising from Tune Review. – summary note
from Deputy
Commissioner.
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17
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
20/04/2021
Defini�on of records in
Interac�ons
No
The Deputy Commissioner Elizabeth Hampton:
Internal OAIC
D2023/018790
No
Archives Act and FOI Act
(defini�on of
• raised with AGD poten�al inconsistencies
email
‘record’)
between Archives Act requirements and FOI
correspondence
Act requirements. Considera�on prompted
20/4/2021 and
by Tune Review which raised poten�al
8/5/21.
difficul�es with the defini�on of ‘record’
Discussions with
under Archives legisla�on.
AGD on
• s47C
20/4/2021
(informal) and
7/5/2021.
Bill scru�nies
15/08/2023
Na�onal Security Legisla�on
Yes:
No
The Bil amends the
Australian Security Intel igence
Email
D2023/019380
No
Amendment (Comprehensive
Schedule 3
Organisation Act 1979 (ASIO Act) amongst others. In
Nil FOI Comments
Review and Other Measures
par�cular, the Bil proposes to repeal and replace s 92
D2023/005882
No. 3) Bil 2023
of the ASIO Act and insert new s 92A.
Given Sch 3 of the FOI Act lists subsec�ons 92(1) and
92(1A) as secrecy provisions (pursuant to s 38) the Bil
proposes consequen�al amendments to the FOI Act. In
par�cular, the Bil proposes to remove s 92(1A) and
subs�tute 92A(1) in Schedule 3. The effect of the Bil
would mean that the Sch 3 of the FOI Act would refer
to a new s 92(1), even if the FOI Act does not require
specific amendment in this regard.
05/06/2023 &
Parliamentary Workplace
Yes
No
We understood that the dra� Bill concerns the
Email
D2023/019452
No
28/06/2023
Support Service (consequen�al
ss 7 and
Parliamentary Workforce Support Service (PWSS) and
Addi�onal response
Amendments & Transi�onal
Schedule 2
amends the Freedom of Informa�on Act 1982 (FOI Act)
D2023/019462 Email
provisions) Bill 2023
(Div 1 of Part
as fol ows:
response to AGD
1)
1. specifies the PWSS in Schedule 2 (Division 1 of
Part I) as an exempt agency for the purposes of
the FOI Act.
2. inserts proposed subsec�on 7(2DC) to exempt the
Minister and agency from the opera�on of the
FOI Act in rela�on to:
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18
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
• a document given to, or received by,
the PWSS in connec�on with the
performance of PWSS func�ons;
• a document brought into existence by
the PWSS.
3. Inserts subsec�on 7(2DE) which specifies that the
above proposed excep�on does not apply to
documents created other than in connec�on with
the performance of PWSS func�ons (the dra�ing
notes indicate this is to prevent a Minister or
Agency giving a document to the PWSS in order
to circumvent disclosure that would be otherwise
required under the FOI Act).
s47C
s47C
s47C
.
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19
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
26/05/2020
Na�onal Commissioner for
Yes
No
s47C
Email
D2020/010844 Response to Par�ally –
Defence & Veteran Suicide
ss 7,
AGD (FOI Comments)
included s7(E)
Preven�on Bil 2020 and
Schedule 2
(vi) (b) that
associated consequen�al
(Div 1 Pt 1)
contains info to
amendments Bil
which s 6OQ of
that Act which
deals with
certain info
given to the
Defence and
Veteran Suicide
Royal
commission
(applies; (b) a
document that
contains a
summary of or
an extract or
informa�on
from a private
session.
14/03/23 -
Na�onal Security Legisla�on
Yes: ss 7,
No
s47C
Telephone
D2023/019993 internal
Yes – Bill received
20/03/2023
Amendment (Comprehensive
55ZA
consulta�on
OAIC summary of proposed assent on 11
Review and Other Measures
fol owing AGD
amendments
August 2023.
No. 3) Bil 2023
email
26/05/2023
s47C
s47C
Email
s47C
No
s47C
No
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20
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
s47C
s47C
11/01/2023
Royal Commissions
Yes: s 7
Email
D2023/000548 - FOI
Bil received
Amendment (Enhancing
No
Proposed amendments to the Bil wil :
• increase the scope of informa�on protected
Response
assented
Engagement) Bil 2022
by the Royal Commissions Act 1902 (Royal
11/04/2023 and
Commissions Act) to include informa�on
amende
d s 7
obtained outside of private sessions, and to
(inserted 7
further protect informa�on provided to the
(2E)(a)(vi))
Commission beyond the dura�on of the
Commission through the 99 year open access
period for the purposes of the Archives Act
1983; and
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21
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
• amend the Freedom of Informa�on Act 1982
(FOI Act) to insert a new s 7(2E)(a)(vi) which
wil exclude informa�on covered by s 6OQ of
the Royal Commissions Act from disclosure
under the FOI Act.
The effect of the proposed amendment is that
individuals wil not be able to access their own
personal informa�on under the FOI Act or apply for
such records to be amended under s 48 [Amendment
and annota�on] of the FOI Act, if it is informa�on to
which s 6OQ applies. Similarly under the Royal
Commissions Act, although clause 6OQ(3) permits an
individual to access the informa�on they have
provided, this does not extend to individuals who have
informa�on given on their behalf.
s47C
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22
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
13/12/2019 V22
Data Availability &
Yes
No
Mul�ple suggested amendments and consulta�ons
Email
D2023/019317
Data Availability
17/12/2019
Transparency Bil 2020
s 16
D2023/019319
and
(UFOI1)
& 2019
s 11
Sec�on 121 (1) DAT Bil
Transparency
Changes made to cl 121(1) of dra� Bil , now provides
D2023/019320
(Consequen�al
06/01/2020 V31
that individuals do not have a right of access under the
D2023/019321
Amendments)
17/01/2020 (s
FOI Act to obtain documents shared by a data
D2022/001718
Bil was passed
121)
custodian with or through an accredited en�ty, from
in 2022 with
07/02/2022
the accredited en�ty.
FOI Response (Dra�)
amendments to
28/01/2022
D2023/019311
s 7. Inserted s
s47C
7(2F)
exemp�on.
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Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
s47C
22/02/2021
Commonwealth Integrity
Yes
No
Dra� legisla�on comprises two Bil s, CIC Bil and the
OAIC completed
D2023/019382 OAIC
No
Commission (CIC) Bil Dra�
Integrity and An�-Corrup�on Legisla�on Amendment
writen response
Submission
Legisla�on 2020
Division 1
(CIC Establishment and Other Measures) Bil 2020 (CIC
(via AGD-provided
Schedule 2
Establishment and Other Measures Bil ).
template).
Integrity and An�-Corrup�on
Further, cl 90 of the CIC Establishment and Other
Legisla�on Amendment (CIC
Measures Bil proposes to insert the ‘Commonwealth
Establishment and Other
Integrity Commission’ into Division 1 of Part 1 of
Measures) Bil 2020 (CIC
Schedule 2 of the FOI Act, which would have the effect
Establishment and Other
of excluding the CIC en�rely from the opera�on of the
Measures Bill).
FOI Act.
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24
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
Accordingly, the Bil wil exempt the CIC, and any
documents produced by a Minister or agency for the
purposes described above, from the opera�on of the
FOI Act.
27/11/2020 &
Dra� Online Safety Bil 2020
Yes
No
MA15+ is no longer included as class 23 material
Email
D2021/002399
Amendments
11/02/2021
Schedule 2
s47C
Submission to
OAIC response email to
made by the
s 4(1)
Communica�ons
AGD
Online Safety
s 37
Legisla�on
D2021/002942 – OAIC
(Transi�onal
Commitee
submission to Commitee
Provisions and
D2021/000182 – Further
Consequen�al
comment to AGD
Amendments)
Act 2021
: s 4,
Sch 2
27/05/2020
Territories Legisla�on
Yes
No
Inserts a definition of Norfolk Island law into s 4(1) of
Email
D2023/019338 –
Yes -
Amendment Bil 2020
s 4(1)
the FOI Act.
OAIC Response to AG
amendments to
s 4
26/05/2020
Na�onal Commissioner for
Yes
No
s47C
Email
D2023/019326
Par�ally –
Defence & Veteran Suicide
s 7
included s7(E)
Preven�on Bil 2020
(vi) (b) that
(consequen�al amendments
contains info to
Bill)
which s 6OQ of
that Act which
deals with
certain info
given to the
Defence and
Veteran Suicide
Royal
commission
(applies; (b) a
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25
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
s47C
document that
contains a
summary of or
an extract or
informa�on
from a private
session.
13/03/2020
Social Services and Other
Yes
To give effect to Government’s decision to convert the Email
D2023/019322
Yes - Defini�ons
Legisla�on Amendment
former Department of Human Services into an
in s 4 amended
(Omnibus) Bil 2020
s 4(1)
Execu�ve Agency cal ed Services Australia.
by Services
a small amendment under Schedule 1 that wil affect
Australia
the FOI Act: Subsec�on 4(1) (defini�on of Human
Governance
Services Department) Omit “the Department
Amendment Act
administered by the Human Services Minister”,
2020
subs�tute “Services Australia”.
19 Subsec�on 4(1) (defini�on of Human Services
Minister) Repeal the defini�on.
The provisions affec�ng the FOI Act again appear to
give effect to agency conversion, by subs�tu�ng DHS
for Services Australia, and repealing the defini�on of
Human Services Minister. Changes not likely to
adversely impact opera�ons of the FOI Act
13/09/2019
Australian Sports An�-Doping
Yes
No
Iden�fy documents exempt from disclosure under the
Email
D2023/019294
Bil received
Authority Amendment (Sport
s 38 and
FOI Act because there are secrecy provisions in an Act.
assent 6 March
Integrity Australia) Bil 2019
Schedule 3
Sec�on 67 of the ASADA Act is a secrecy provision
2020.
of FOI Act
providing protected informa�on may only be disclosed
Amended
under certain condi�ons. No provisions of the ASADA
Schedule 3.
Act are currently listed in Schedule 3 of the FOI Act. At
item 13 of Schedule 2, the Bil proposes to add Sport
Integrity Australia Act 2019, sec�on 67’ to Schedule 3
of the FOI Act. This would have the effect of protected
informa�on under the Sport Integrity Australia Act
being treated as an ‘exempt document’ under the FOI
Act regime.
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26
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
21/08/2019
Migra�on and Ci�zenship
Yes
No
The Bil proposes to insert a new provision into sec�on Email
D2019/012566 – email to
No - 2019 and
25/10/2019
Legisla�on Amendment
s 38
38(3)(b) of the FOI Act. The proposed amendment
Home Affairs
2020 Bil s
04/11/2019
(Strengthening Informa�on
Schedule 3
proposes if a person seeks access under the FOI Act to
second reading
03/12/2020
Provisions) Bill 2020
confiden�al informa�on communicated by a law
D2019/012567 – Request
moved though
Suggests
enforcement or intel igence agency to a
lapsed at
Migra�on and Ci�zenship
repealing
Commonwealth officer for the purpose of refusing,
D2020/022687 – Response
dissolu�on
Legisla�on Amendment
38(3)(b)
cancelling, renouncing or revoking their Australian
to AGD
11/04/2022
(Strengthening Informa�on
503A of the
ci�zenship, the secrecy provision in sec�on 38 of the
Provisions) Bill 2019
Migra�on
FOI Act applies to exempt that document from
Act
disclosure, even if the informa�on sought is personal
informa�on only about the person seeking access (to
which sec�on 38(2) would usual y apply to allow the
person to access their own personal informa�on,
despite it being subject to a secrecy provision). The
proposed amendment to the FOI Act mirrors the
language of the exis�ng sec�on 38(3)(b) of the FOI Act
as it applies to confiden�al informa�on communicated
by a law enforcement or intel igence agency to a
Commonwealth officer for the purpose of cancel ing a
person’s visa under sec�on 501 of the Migra�on Act
1958. s47C
12/07/2019
Royal Commissions
Yes
No
Introduce a proposed s 60N seeking to protect
Email
D2019/008092 - FOI
2019 Bil - Yes –
Amendment (Private Sessions)
s 7(2E)(a)
informa�on given by a natural person to the Child
Response
Commenced
Bil 2019
Sexual Abuse Royal Commission other than for the
13/09/2019
purposes of a private session, and:
Amend
ed s 7:
•
contains an account of the person’s
repealed and
experience of child sexual abuse in an ins�tu�onal
replaced Sch 2:
context, or
s 7(2E)(a),
added 7(5).
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Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
•
contains an account of what happened to
other people regarding child sexual abuse, and
•
the informa�on iden�fies the informa�on-
giver and was treated as confiden�al by the
Commission.
s47C
The amended Bil introduces a new s 6ON into the
Royal Commissions Act 1902 and extends the
opera�on of s 7(2E)(a) of the FOI Act to include the
informa�on iden�fied in s 6ON of the Royal
Commissions Act (by adding s 7(2E)(a)(iv)). This has the
effect of excluding from the scope of the FOI Act, not
only informa�on rela�ng to private sessions of the
Child Sexual Abuse Royal Commission (as the ini�al Bil
did), but also informa�on given by a person other than
in a private session that contains an account of abuse
from which the person is iden�fiable, and which was
treated confiden�ally by the SARC.
s47C
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Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
s47C
09/08/2019
Interac�ve Gambling
Yes
No
Introduced with the Na�onal Self-exclusion Register
Email
D2023/019378 – FOI
No
Amendment (Na�onal Self
(Cost Recovery Levy) Bil 2019, amending the
response
Exclusion Register) Bill 2019
Australian Communica�ons and Media Authority
(ACMA) Act 2005, Interac�ve Gambling Act 2001 and
D2019/008827 – Internal
Privacy Act 1988 to establish a Na�onal Self-exclusion
email
Register. s47C
D2023/019348 - Request
from AGD
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29
Inquiry into the opera�on of Commonwealth Freedom of Informa�on (FOI) Laws
s47C
03/10/2018
Intelligence Oversight and
Yes
No
Proposed amendment to s 34(1A) if material released
Email
D2023/019322 -
No
Other Legisla�on Amendment
s 34 (1AA)
or shared by the IGIS – regarding obliga�on when
No comments by OAIC – no
(Integrity Measures) Bil 2018
evidence of breach of duty or misconduct
concerns on proposed
changes
12/07/2018
Commonwealth Registers Bil
Yes
No
s47C
Email
D2023/019375 - Response
No
2018
to AGD
s 3
s 12(1)(b))
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Inquiry into the operation of Commonwealth Freedom of Information (FOI) laws
COMMISSIONER BRIEF Number 19
Proposed legislative amendments as at August 2023
Proposed amendments to the
Freedom of Information Act 1982 (FOI Act) and
Australian Information Commissioner
Act 2010 (AIC Act) are set out in
Appendix A. The proposed amendments that have previously been raised with the
Attorney-General’s Department (including through the
Hawke Review) are highlighted in yellow. For further
information, see
Commissioner Brief 18 – Proposed amendments to the Freedom of Information Act 1982 from 2018.
Features for consideration in state, territory and New Zealand information access laws are also set out in
Appendix B.
For further information, see
Commissioner Brief 16 – Information access laws across Australian states and territories.
The proposed amendments to the FOI Act seek to:
• strengthen the remit of the Information Publication Scheme by providing the Information Commissioner the
power to issue a legislative instrument to specify classes/categories of additional information that must be
published on an agency’s Information Publication Scheme (Recommendation 1)
• mandate the establishment of administrative access schemes for personal information/personnel records
and the use of such schemes as a pre-condition to exercising the right of access under s 15 of the FOI Act
(Recommendation 2)
• clarify the status of requests for documents following a change in minister and process for IC reviews where
there has been a change in minister (Recommendation 3)
• remove or otherwise amend paragraph 11(3)(c) to remove ambiguity around the requirement to have
released documents available for direct download (Recommendation 4)
• limit the OAIC’s role in relation to extending processing timeframes (Recommendation 5)
• clarify for agencies and ministers that they retain decision maker powers even if they are deemed to have
refused a request (Recommendation 6)
• remove duplication through providing that a valid IC review cannot be made while an internal review process
remains on foot or until an internal review process is complete (Recommendation 8)
• assist in the effective triage and resolution of IC review applications, including through:
o providing the Information Commissioner the power to issue directions to prescribe the method of
application and the power to remit a matter back to the decision maker (Recommendations 9 and 12)
o clarifying that hearings for IC reviews are only held in unusual circumstances (Recommendation 10)
o require the Information Commissioner’s consent for a revised decision by the agency/minister during an
IC review (Recommendation 11)
o providing the power for parties to resolve a matter without an IC decision (Recommendation 13)
• assist in the effective management of FOI complaints, including through:
o requiring the complainant to specify the action taken by an agency in the performance of functions, or
the exercise of powers under the FOI Act (Recommendation 14)
o providing the Information Commissioner the discretion to investigate a complaint and to further broaden
the circumstances in which an FOI complaint can be finalised without conducting or continuing to
undertake an investigation (Recommendations 15 and 16) and
o requiring the complainant to lodge a complaint with the agency or minister first (Recommendation 17)
• amend the
Australian Information Commissioner Act 2010 to:
o introduce an audit or assessment power as an FOI function in s 8(1)(g) (Recommendation 18)
o introduce a power to develop professional standards (Recommendation 19)
o broaden the categories of information at s 31 that are required to be reported to the OAIC
(Recommendation 20).
Version:1.0
Cleared by: Rocel e Ago
Action officer: Rocel e Ago
Current at: 23/08/23
Phone number: 02 9942 4205
Action officer number: 02 9942 4205
Inquiry into the operation of Commonwealth Freedom of Information (FOI) laws
Appendix A
FOI Act Amendments
Recommendation Category
Context
Provision
Amendment requested
1.
Kinds of other
Section 8 sets out publication of information requirements s 8(7) (new)
We request an amendment that gives the Information
information to be
and includes a discretion in s 8(4) to publish ‘other
Commissioner the power to issue a legislative instrument to
published
information’. Agencies have asked for greater clarity about
specify classes/categories of additional information. This
(Part II Information what might constitute ‘other information’ for the purpose
amendment would al ow the Information Commissioner to
Publication
of s 8(4) of the FOI Act.
further promote the objects of the FOI Act.
Scheme)
Give the Information Commissioner power to issue a
legislative instrument to specify classes/categories of
additional information.
2.
Request for
Section 15A sets out the process for seeking access to
s 15A
We request that s 15A be amended to
personnel records
personnel records held by an agency.
•
require agencies to establish an administrative
/ personal
access process and for applicants to utlise that process prior
information
to making a request under s 15. This wil assist ensuring that
agencies have an adminsitrative access process to release
information in a more timely way and would further
promote the objects of the FOI Act.
•
Extend the provision (or create a new provision) to
capture requests for an individual’s own personal
information held by an agency and to mandate the creation
of an administrative access process. This wil significantly
reduce the number of FOI requests relating to personal
information and wil al ow for more timely provision of
documents, further promoting the objects of the FOI Act.
This may also assist in addressing the requests made by
individuals seeking their information through the FOI
process for the purpose of an active or upcoming matter in
the AAT.
3.
Definition of
The impact of a change of minister on an FOI request,
s 4; Part VI Review by
We seek an amendment to clarify the status of requests for
‘official document
including where the new minister is required to make a
Information
documents fol owing a change in minister and process for IC
of a minister’
decision on the request, and an IC review, including
Commissioner
reviews where there has been a change in minister.
whether the OAIC would have the power to make a
decision and release a document within its possesion,
requires clarification.
4.
Disclosure log –
The Information Commissioner is of the view that
s 11C(3)
We seek to remove or otherwise amend paragraph 11(3)(c)
making documents consistent with better practice, agencies and ministers
to remove ambiguity around the requirement to have
available for direct should seek to make al documents released in response to
released documents available for direct download.
download
FOI requests available for download from the disclosure
log or another website (s 11C(3)(a) or (b)) subject to
FOI Act Amendments
applicable exceptions, unless it is not possible to upload
documents due to a technical impediment, such as file size,
the requirement for specialist software to view the
information, or for any other reason of this nature. This
approach is consistent with the objects of the FOI Act.
5.
Extensions of time A number of FOI Act provisions provide for extension of
Part III in particular s
We request amendments to Part II to:
(EOT)
time, including: by agreement with the applicant (s 15AA); if 15AA, s 15AB, s 15AC
• remove the requirement to notify the OAIC of
the request is complex or voluminous, by application to the
extensions of time by agreement; and
IC (s 15AB); and after the processing period has run out to
• restrict the OAIC’s role in approving extensions of
al ow the request to be finalised, by application to the IC (s
time to situations where an FOI applicant has sought
15AC). The agency is also required to notify the OAIC if an
an Information Commissioner review or made a
applicant agrees to an extension of time. The Hawke
complaint about delay in processing a request.
Review noted that existing EOT provisions, together with
the deemed refusal provisions for decisions not made
within time (ss 15AC(3)), are complex and confusing –
particularly in relation to whether an agency can continue
to process a request without an extension from the OAIC.
Revising these procedures may enhance their operation and
reduce the burden on agencies including on the OAIC.
Recommendation 7 of the Hawke review recommends that
the FOI Act be amended to:
•
remove the requirement to notify the OAIC of
extensions of time by agreement; and
•
restrict the OAIC’s role in approving extensions of
time to situations where an FOI applicant has
sought an Information Commissioner review or
made a complaint about delay in processing a
request.
A couple of submissions to this current FOI Inquiry were in
line with this principle (Home Affairs suggested removing
the requirement for an agency to notify the OAIC of an
applicant’s agreement to a s 15AA EOT and another
stakeholder (consultant) stated that OAIC’s EOT role under
s15AA and s 15AB appears to waste considerable
resources).
To maintain an oversight role for the OAIC concerning EOTs,
alternative approaches could be considered – for example,
a requirement on agencies to notify the OAIC where
processing delays are over a certain threshold (this
3
FOI Act Amendments
potential approach reflects submissions by Home Affairs
and the Public Interest Advocacy Centre).
6.
Deemed access
Section 15AC(3) provides that if a decision is not made
ss 15AC(3), 54D and 54Y We see an amendment to clarify that an agency retains
refusal decision
within the statutory timeframe the request is deemed to
decision making power even if they are deemed by law to
have been refused by the principal officer of the agency or
have refused the request.
the minister. A similar provision applies to with respect to
See for example: Section 39(3) of the
Freedom of Information
internal review by agencies (s 54D).
Act 2016 (ACT):
‘The respondent may continue to deal with
On one interpretation an agency or minister has no legal
the application and give notice of a decision on the
power to make a decision on an FOI request if the decision
application’.
is deemed to have been refused under s 15AC(3), unless an
extension of time has been granted under s 15AC(5) or the
applicant has made an IC review application and s 55G
applies. A similar position applies with respect to agencies
on internal review under s 54D. This would have the
consequence that an applicant’s right of access under the
FOI Act would be impeded through delay on an agency’s
part and could only be revived by an application for IC
review. This result would be contrary to the objectives and
requirements of the FOI Act.
7.
Part payment of
There is currently no provision in the FOI Act al owing for
s 29
We seek an amendment to s 29 to provide that if the
charges for FOI
finalisation of an FOI request if the applicant decides not to
applicant does not pay the charge in full within 60 days of
request (Part III
pay the balance of a charge after receiving a decision under
being notified of a decision under s 29(6) that the FOI request
Access to
s 29(6). As a result, the request could remain on hand
is deemed to have been withdrawn.
documents –
indefinitely.
Charges)
8.
Concurrent
Applicants on occasion have applied for both internal and
Part VII – Div 3
We seek an amendment to the FOI Act to provide that a
internal and
external review after receiving the primary FOI decision.
valid IC review cannot be made while an internal review
external review
This results in confusion, double handling, and
process remains on foot or until an internal review process is
(Part VII Review by inefficiencies in undertaking both internal and IC reviews.
complete.
Information
Commissioner –
We request an amendment that streamlines the review
Division 3)
process and makes it clear that while an applicant has the
choice of seeking internal review or IC review, the
applicant cannot seek IC review where an internal review
process is on hand.
9.
Making an IC
To assist in the more efficient triage and early resolution of Section 54N sets out the We seek an amendment to s 54N(4)(c) to remove the
review application matters, we encourage applicants to lodge their
requirements for making reference ‘to an electronic address’ and to include the power
applications through an online form which is integrated into an IC review application. for the Information Commissioner to specify the electronic
the OAIC’s case management database. We request an
In particular, s 54N(4)
method to receive the IC review application.
amendment that would encourage the use of the online
prescribes the method in
4
FOI Act Amendments
form. This could be achieved through amending s 54N(4)(c) which the IC review
by removing ‘to an electronic address’.
application may be
delivered to the OAIC:
(a) delivery to the
Information
Commissioner at the
address of the
Information
Commissioner specified
in a current telephone
directory;
(b) postage by pre‑paid
post to an address
mentioned in paragraph
(a);
(c) sending by electronic
communication to an
electronic address
specified by the
Information
Commissioner.
10.
Hearings for IC
s 55B
We seek an amendment to s 55B of the FOI Act to reflect that
reviews (Part VII
Section 55B is framed in a way that supports a view that
hearings wil only be held in unusual circumstances.
Review by
hearings are a usual feature of IC reviews. Parts 10.63 to
Information
10.66 of the FOI Guidelines provide that hearings are not
Commissioner)
intended to be a common part of IC reviews because they
increase contestability, introduce more formality and
prolong resolution of the review. Notably, hearings are also
not a feature of the external review process conducted by
the Office of the Victorian Information Commissioner and
the Office of the Information Commissioner (Qld).
11.
Revising a refusal
Section 55G al ows an agency or Minister to vary or set
s 55G
We seek an amendment to s 55G of the FOI Act to require
decision –
aside and substitute an access refusal decision in relation to
consent by the Information Commissioner for a revised
Commissioner’s
a request or an application under s 48 at any time during an
decision by the agency or minister.
consent (Part VII
IC review if the variation or substitution (the revised
Review by
decision) would have an effect of: giving access to a
Information
document in accordance with the request; relieving the IC
Commissioner)
review applicant from liability to pay a charge; or requiring
a record of personal information to be amended or
annotated in accordance with the application.
5
FOI Act Amendments
There have been various instances where an IC review was
progressing to a decision under s 55K and the OAIC was
advised that a revised decision has been made and
provided directly to the applicant. At times, a revised
decision has: relied on further exemptions to refuse access
to certain material (thereby adding other exemptions that
need to be considered); or not resolved the issues on
review.
We request an amendment that would require the agency
or minister to make a revised decision with the consent of
the Information Commissioner. This amendment would
assist in making the conduct of IC reviews and the process
of making decisions under s 55K more efficient.
12.
Power to remit
New provision
matter to decision
See Hawke Review recommendation 4: The Review
We seek an amendment to the FOI Act that would provide
maker for further
recommends the FOI Act be amended to provide an express
the power to remit an IC review for further consideration by
consideration (Part power for the Information Commissioner to remit a matter
the original decision-maker.
VII Review by
for further consideration by the original decision-maker.
Information
Commissioner)
13.
Resolution of IC
The Hawke Review recommended:
Part VII
We seek an amendment to the FOI Act to provide for the
review by
resolution of IC review applications by agreement without
agreement (Part
Recommendation 5 – Resolution of Applications by
requiring a formal IC review decision.
VII Review by
Agreement
See recommendation 5 of the Hawke Review.
Information
The Review recommends the FOI Act be amended to make it
Commissioner)
clear that an agreed outcome finalises an Information
Commissioner review and, in these circumstances, a written
decision of the Information Commissioner is not required. This amendment would assist in more efficient finalisation
of IC reviews and provide greater clarity regarding the
finalisation of an FOI request/process.
6
FOI Act Amendments
14.
Information
Section 70(2) provides that a complaint must (a) be in
s 70
We seek an amendment to s 70 to provide that the
Commissioner
writing; and (b) identify the agency (also the respondent
complainant specify the action taken by an agency in the
investigations—
agency) in respect of which the complaint is made.
performance of functions, or the exercise of powers under
making complaints
the FOI Act.
(Part VIIB of the
The provision does not require the complainant to specify
FOI Act)
the action taken by an agency in the performance of
functions, or the exercise of powers under the FOI Act.
We request an amendment that requires the complainant
to specify the action taken by an agency in the
performance of functions, or the exercise of powers under
the FOI Act.
15.
Information
Section 69(1) requires that ‘the Information Commissioner s 69
We seek an amendment to s 69 to provide that the
Commissioner
must, subject to this Division, investigate a complaint made
Information Commissioner may, subject to this Division,
investigations—
under section 70’.
investigate a complaint made under section 70.
power to
investigate (Part
The provision appears to anticipate that every complaint
VIIB of the FOI Act) wil be investigated.
We request an amendment that provides the Information
Commissioner the discretion to investigate a complaint.
16.
Decline grounds
This amendment seeks to provide greater clarity as to the
s 73
We seek an amendment to broaden s 73 of the FOI Act to
for FOI
grounds to decline to undertake or continue to undertake
include additional circumstances in which an FOI complaint
investigations (Part an investigation, including where:
can be finalised without conducting or continuing to
VIIB Investigations
undertake, an investigation.
and Complaints)
-
The complaint is more appropriately handled as
an IC review
-
Fol owing notification of the complaint to the
OAIC, the respondent agency has dealt, or is dealing with
the complaint or has not yet had an adequate opportunity
to deal with the complaint
Powers should, where appropriate, also be consistent with
powers under s 41 of the
Privacy Act, including where
investigation is not warranted and where the Information
Commissioner is not able to provide the outcome that is
being sought by the complainant.
17.
Decline grounds
s 73(c)
We seek an amendment to remove the requirement for the
for FOI
This amendment seeks to provide the Information
complainant to complain to the respondent agency first
investigations (Part Commissioner the power to decline to undertake or
continue to undertake an investigation where the the
7
FOI Act Amendments
VIIB Investigations respondent agency: (i) has dealt, or is dealing, adequately
and Complaints)
with the complaint; or (i ) has not yet had an adequate
opportunity to deal with the complaint without having the
complainant made a complaint to the respondent agency
first.
AIC Act Amendments
18.
AIC Act - Broaden
Section 8(1)(g) of the Australian Information Commissioner s 8(1)(g) of the
We request an amendment to s 8(1)(g) of the Australian
freedom of
Act 2010 sets out that FOI functions include ‘monitoring,
Australian Information
Information Commissioner Act to set out that ‘auditing’ or
information
investigating and reporting on compliance by agencies’ with
Commissioner Act 2010
‘assessing’ is an FOI function.
functions – issue
the FOI Act. We consider an audit or assessment power
professional
would also be useful to foster and ensure compliance with
standards
FOI requirements, for example, where systemic issues are
identified in relation to particular a particular agency or
agencies.
19.
AIC Act – Broaden
This amendment seeks to provide the Information
s 8 of the
Australian
We request the inclusion of a new freedom of information
freedom of
Commissioner the power to develop Standards relating to
Information
function to issue professional standards.
information
the conduct of an agency in performing its functions under
Commissioner Act 2010
functions – issue
the Act, and the administration and operation of the Act by
professional
an agency. See s 6U of the Freedom of Information Act
standards
1982 (VIC)
20.
AIC Act -
The OAIC (and before that the Attorney-General’s
s 31 of the
Australian
Amend s 31 to broaden the categories of information
Broadening the
Department) col ects general financial information that
Information
required to be reported to the OAIC to support col ection of
categories of
directly relates to FOI and Information Publication Scheme
Commissioner Act 2010
information relating to non-staff costs directly attributable to
information
(IPS) work, however the requirement to do so is not
FOI or IPS work (for example, general administrative costs,
required to be
mandated in the AIC Act.
general legal advice costs, litigation costs, training costs and
reported to the
As a result, some agencies are unwil ing to provide this
any other expenditure directly tied to FOI or IPS work, or give
OAIC
information and this results in inaccurate information being
the Information Commissioner power to issue a legislative
published about the cost to the Australian Government in
instrument to specify classes/categories of information to be
relation to the FOI Act.
reported.
8
Appendix B
(Please note the same content is in Com brief 16 – Information Laws Across States and Territories)
Features for consideration in state, territory and New Zealand information access laws
Category
Feature
Jurisdiction
Benefit
Definition of
Definition of personal information for an individual who is or has been an officer
ACT
Reduce the length of time to process/decide/edit
personal
of an agency or staff member of a Minister, does not include information about (I)
documents
information
the individual’s position or functions as an officer or staff member, or (i ) things
done by the individual in exercising functions as an officer or staff member
Reduce the complexity/number of issues raised in IC
(
Freedom of Information Act 2016 (ACT) Dictionary)
review
Definition of personal information excludes information about an individual
NSW
Reflect core principles we seek to enforce in the FOI
(comprising the individual’s name and non-personal contact details, including
Guidelines
position title, public functions and the agency in which the individual works) that
reveals nothing more than the fact that the person was engaged in the exercise of
Improve trust and confidence in the system.
public functions:
Government Information (Public Access) Act 2009 (GIPA Act)
s
4(3)).
Discussion on
Public interest (
Freedom of Information Act 2016 (ACT) s 16); decision making
ACT
Reduce the length of time to process/decide/edit
public interest
steps (s 16(1); factors not to be taken into account, including whether access to
documents
test
the information could inhibit frankness in the provision of advice from the public
service (s 16(2); applicant’s identity, circumstances and reason for seeking access
Reduce the complexity/number of issues raised in IC
may be taken into account if the information requested is personal information
review
and the personal information is not about the applicant (s 16(3))
Reflect core principles we seek to enforce in the FOI
Factors to be considered when deciding the public interest test (
Freedom of
ACT
Guidelines
Information Act 2016 (ACT) Schedule 2)
Publication
Agencies and ministers must make open access information publicly available
ACT
Reduce the number of requests received by agencies
unless it is contrary to the public interest information. In those circumstances, a
and ministers
description of the information must be published unless there is a legislatively-
specified reason not to publish – and the Ombudsman must be told about the
Reduce the length of time to process/decide/edit
decision and reasons.
(Freedom of Information Act 2016 (ACT) ss 23–24; incoming
documents
briefs, question time briefs, Minister’s disclosure log and diary)
9
Category
Feature
Jurisdiction
Benefit
Open access requirements for minister (GIPA Regulation cl 6 and 9).
NSW
Reduce the complexity/number of issues raised in IC
review,
Cabinet papers and minutes must be proactively released within 30 business days
New Zealand
of final decisions being taken by Cabinet, unless there is good reason not to
Reflect core principles we seek to enforce in the FOI
publish al or part of the material, or to delay the release (Cabinet Office circular -
Guidelines
CO (23) 4: Proactive Release of Cabinet Material: Updated Requirements).
Further the objects of the Act through mandating
specific classes of documents to be published
Administrative
An agency is authorised to release government information held by the agency to
ACT
Reduce the number of requests received by agencies
access
a person in response to an informal request by the person (
(Freedom of
and ministers
Information Act 2016 (ACT) s 8).
Oversight
Oversight by a Parliamentary Committee.
ACT: ACT Legislative Improve trust and confidence in the regulator
Assembly; ACAT (for
Ombudsman review Improve trust and confidence in the system.
decisions).
QLD: Legal Affairs
and Community
Safety Committee
(
Right to Information
Act 2009 (QLD) s
189).
NSW: Joint
Parliamentary
Committee (s44
Government
Information
(Information
Commissioner)
Act 2009 (NSW)).
10
Category
Feature
Jurisdiction
Benefit
SA: Crime and Public
Integrity Policy
Committee
TAS: Joint Standing
Committee on
Integrity
VIC: Accountability &
Oversight Committee
of Parliament
WA: Standing
Committee on Public
Administration,
Legislative Council,
WA Parliament
Shared leadership/promotion of Open Government: NZ Ombudsman, Minister
New Zealand
Improve trust and confidence in the regulator
Responsible for State Services and State Services Commissioner
(publication of FOI
statistics)
Improve trust and confidence in the system.
Functions and
Extensions of time provided by Ombudsman if the applicant has refused or not
ACT
Assist in the timely discharge of regulatory functions
role of the
agreed to the extension (
(Freedom of Information Act 2016 (ACT) s 42).
Information
Commissioner
Investigate complaints about an agency or Minister’s action, or failure to take
ACT
Improve trust and confidence in the regulator
action, in relation to any of the functions
(Freedom of Information Act 2016 (ACT) s
69)
Improve trust and confidence in the system.
Review, upon application, a decision about making open access information
ACT
Improve trust and confidence in the regulator
available
(Freedom of Information Act 2016 (ACT) s 74).
Improve trust and confidence in the system.
Make recommendations to agencies (GIPA s 92) including recommendations: that
NSW
Assist in the timely discharge of regulatory functions
an agency reconsider a matter; as to public interest against disclosure; and as to
general procedure of an agency (GIPA Act ss 93-95).
11
Category
Feature
Jurisdiction
Benefit
Requirement to identify opportunities and processes for early resolution –
QLD
Improve trust and confidence in the regulator
including mediation – to promote settlement of an external review application
(
Right to Information Act (QLD) s 90).
Improve trust and confidence in the system.
Provide advice, education and guidance to agencies in relation to compliance with
Victoria
Improve trust and confidence in the regulator
any professional standards (
Freedom of Information Act 1982 (VIC) s 6I(2)(b)).
Improve trust and confidence in the system.
Powers of
Declaration that information is open access information
(Freedom of Information
ACT
Improve trust and confidence in the regulator
compulsion and
Act 2016 (ACT) s 65).
procedures
Improve trust and confidence in the system.
Require parties to attend mediation to resolve review matter
(Freedom of
ACT
Assist in the timely discharge of regulatory functions
Information Act 2016 (ACT) s 81).
Improve trust and confidence in the regulator
Parties to a complaint may be represented when required to appear (
Freedom of
WA
Information Act 1992 (WA) s 70(6)).
Improve trust and confidence in the system.
The decision of the Commissioner is to be regarded as the decision of the agency
WA
and has effect accordingly (
Freedom of Information Act 1992 (WA) s 76(7))
The Commissioner has to arrange to have his or her decisions published in full or
WA
in an abbreviated, summary or note form whichever is appropriate in order to
ensure that the public is adequately informed of the grounds on which such
decisions are made. (
Freedom of Information Act 1992 (WA) s 76(8))
Review/appeal
Merits review undertaken by Civil and Administrative Tribunal (GIPA Act Pt 5 div
NSW
avenue including
4).
fees and charges
NCAT may refer systemic issues to IC (GIPA Act s 111).
NSW
No review by IC if decision is or has been the subject of NCAT review (GIPA Act s
NSW
98).
Provides for appeals to the Supreme Court (
Freedom of Information Act 1992 (WA)
WA
Division 5)
12
Category
Feature
Jurisdiction
Benefit
Information
The Ombudsman may suspend the review process for up to 30 working days to
ACT
Assist in the timely discharge of regulatory functions
commissioner
facilitate mediation
(Freedom of Information Act 2016 (ACT) s 80A(2)).
review-
Improve trust and confidence in the regulator
timeframes
A statutory 40-day time-frame for IC review commences when the IC receives the
NSW
information necessary to complete the review (GIPA Act s 92A). Extensions are
Improve trust and confidence in the system.
available by agreement with the applicant.
13
link to page 239 link to page 239
Brief – OAIC governance structure
Prepared by:
Tom Mackie
Through:
Rebecca Brown; Sarah Ghali
To:
Commissioner Falk
Copies:
Caren Whip
File ref:
D2023/019853
Date:
18 August 2023
Subject:
OAIC governance structure
Introduction
• This brief summarises the current governance structure of the OAIC (
Part A), the
governance structure of comparable Commonwealth government agencies (
Part B), and
notes the Budget funding granted for the OAIC strategic assessment (
Part C).
Part A: Current OAIC governance structure
• The OAIC ordinarily comprises three independent statutory officeholders – the
Information Commissioner, FOI Commissioner and Privacy Commissioner. They are
appointed by the Governor-General on nomination of the Minister.
1
• When the OAIC was established in 2010, it was recognised that the FOI functions and
privacy functions were too extensive for a single office holder to effectively manage.
2 On
this basis, the two new independent statutory positions of the Australian Information
Commissioner and FOI Commissioner were created (in addition to the existing Privacy
Commissioner position).
• While not expressly stated in the extrinsic materials to the Australian Information
Commissioner Bill 2010, it appears that the Government’s intention at the time was to
retain the efficiencies of individual, independent regulators (i.e. attaching regulatory
1
Australian Information Commissioner Act 2010 (Cth) s 14.
2 Commonwealth
, Australian Information Commissioner Bill 2010 – Second Reading, Senate Hansard,
Senator Sherry (Assistant Treasurer), 13 May 2010, p 2835.
1
oaic.gov.au
link to page 240 link to page 240 link to page 240 link to page 240 link to page 240 link to page 240
powers to individual office holders), rather than establish the OAIC as a commission-
style regulator with distributed decision-making responsibility.
3
• However, the Government of the day considered that it was necessary that there be a
single agency head for strategic and administrative purposes. This view was expressed in
the Government’s second reading speech for the Australian Information Commissioner
Bil 2010:
“
[T]he appointment of multiple statutory officers of equal standing does not
present an effective governance model. The Bil establishes the Australian
Information Commissioner as head of the Office for both strategic and
administrative purposes. It is intended that the FOI Commissioner wil be mainly
responsible for the FOI functions, and that the Privacy Commissioner wil be mainly
responsible for privacy functions.
While the Government expects that the three office holders wil work together
cooperatively, the Bil makes provision for the Australian Information
Commissioner’s view to prevail in any disagreement on matters which involve
substantial policy decisions…”
4
• As a result, the OAIC was established with the Information Commissioner as the agency
head for the purposes of the
Public Service Act 1999 (Cth) and the accountable authority
for the purposes of the
Public Governance, Performance and Accountability Act 2013 (Cth)
(PGPA Act).
• As the accountable authority of a Commonwealth entity, the Information Commissioner
is responsible for the OAIC’s
financial and administrative operations.
5
• The FOI Commissioner and the Privacy Commissioner are ‘officials’ for the purposes of
the PGPA Act and subject to the duties of officials set out in that Act (
see Attachment A).
FOI, privacy and information commissioner functions
• Under the
Australian Information Commissioner Act 2010 (Cth) (AIC Act), the all
Commissioners may all perform FOI functions and privacy functions
.6 However, only the
Information Commissioner can perform the information commissioner functions.
7 The
FOI functions are extracted at
Attachment B.
• The Government of the day considered that al three Commissioners should be able to
perform the FOI and privacy functions for ‘flexibility’ within the OAIC but recognised that
the FOI Commissioner and Privacy Commissioner would ‘mainly’ perform the FOI and
privacy functions, respectively
.8 In the second reading speech for the Australian
Information Commissioner Bil 2010, the Government of the day noted that the FOI and
3 For a description of the distinction between an independent individual regulator and a commission-style
regulator, see Australian Law Reform Commission,
Structure, functions and powers, ALRC Report 108,
[46.10]-[46.12].
4 Commonwealth
, Australian Information Commissioner Bill 2010 – Second Reading, Senate Hansard,
Senator Sherry (Assistant Treasurer), 13 May 2010, p 2835. See relatedly
, Revised Explanatory
Memorandum to the Australian Information Commissioner Bill 2010. 5
Public Governance, Performance and Accountability Act 2013 (Cth) s 12 and 15.
6
Australian Information Commissioner Act 2010 (Cth) s 10-12.
7 Ibid.
8 See,
Australian Information Commissioner Act 2010 (Cth) s 10-12.
2
oaic.gov.au
link to page 241 link to page 241 link to page 241 link to page 241 link to page 241 link to page 241
Information Commissioners in particular would “ensure a constant voice which not only
addresses poor FOI practices, but also addresses attitudes that are not conducive to the
presumption of openness...”
9
• The AIC Act provides that if the FOI Commissioner or Privacy Commissioner performs a
function, or exercises a power, expressed by an Act to be conferred on the Information
Commissioner, the FOI Commissioner and/or Privacy Commissioner:
o must perform the function or exercise the power upon his or her own belief or
state of mind, and
o the function or power is taken to have been performed or exercised by the
Information Commissioner.
• Under the AIC Act, certain matters may only be undertaken with the approval of the
Information Commissioner, such as issuing guidelines or making recommendations to
the Minister about the desirability of legislative change.
10 The Explanatory Memorandum
notes that ‘
this is intended to ensure consistency in policy advice and, in the case of
disagreement, that the Information Commissioner’s view prevails.’
11
• Aside from these specific matters, the
OAIC governance structure is unique in that the
AIC Act does not provide a decision-making structure for the exercise of FOI and privacy
functions in a situation where al three Commissioners can exercise those functions. It
was government’s intention that the three officeholders would work together
cooperatively in discharging those functions rather than through any express provisions
in the AIC Act.
12
• In practice, during times when the OAIC had more than one Commissioner, a
professional agreement was reached between the statutory officeholders regarding how
the functions would be discharged on a day-to-day basis.
13
Part B: Governance structure of other
Commonwealth agencies
• Other Commonwealth regulatory bodies that feature multiple independent statutory
officeholders are often required to fol ow a legislative framework for decision-making.
• For example, the enabling legislation of the Australian Human Rights Commission
(AHRC) contains a legislative process for meetings of the AHRC.
14 Under the AHRC Act,
meetings may be convened by the Minister or President and a quorum is constituted by
9 Commonwealth
, Australian Information Commissioner Bill 2010 – Second Reading, Senate Hansard,
Senator Sherry (Assistant Treasurer), 13 May 2010, p 2835.
10
Australian Information Commissioner Act 2010 (Cth) ss 11(4) and 12(4).
11 Revised Explanatory Memorandum to the Australian Information Commissioner Bill 2010. 12 Commonwealth
, Australian Information Commissioner Bill 2010 – Second Reading, Senate Hansard,
Senator Sherry (Assistant Treasurer), 13 May 2010, p 2835.
13 Prof J McMillan,
‘Information Law and Policy – the Reform Agenda’, AIAL Forum No. 66, Australian
Institute of Administrative law website, July 2011, accessed 2 June 2023, p 58 states that at that time the
“three Commissioners take joint responsibility for managing all office functions.”
14
Australian Human Rights Commission Act 1986 (Cth) s 44.
3
oaic.gov.au
link to page 242 link to page 242 link to page 242
one-half of office-holding members. Questions arising at a meeting of the AHRC are
determined by a majority of the votes of the members present and voting.
• By way of further example, the
Competition and Consumer Act 2010 (Cth) provides a
framework for meetings of the ACCC. The Chair may convene meetings of the
Commission, at which three members form a quorum and where al questions are
decided by a majority of votes of the members present and voting.
15 The member
presiding (ordinarily the Chair) has a deliberative vote and, in the event of an equality of
votes, also has a casting vote.
• Similar provisions govern the Australian Securities and Investment Commission (ASIC)
and the Australian Communications and Media Authority (ACMA).
16
• These provisions appear to have the purpose of providing legislative guardrails for how
the particular commission is to approach decision-making. Such frameworks enable
statutory office holders to come together when required to operate as a col ective
decision-making body in areas of overlap or intersection in a way that is transparent and
preserves their independence. However, specific questions on the operation of these
frameworks may be best directed to the relevant agency or portfolio department.
• Of course, each regulatory framework features nuances that may be reflected in the
relevant enabling legislation.
• For example, the OAIC’s Commissioners can exercise both administrative decision-
making functions (including merit review functions in the case of the FOI framework) as
well as broader regulatory and educative functions. By contrast, these functions are
separated at the AHRC, whereby the President exercises complaint handling powers and
the Commissioners exercise educative, advocacy and related functions.
17 Furthermore,
Commonwealth agencies such as the AAT may exclusively exercise administrative
decision-making functions and do not hold regulatory and educative functions.
Part C: OAIC strategic assessment
• In the 2023 Budget the OAIC received funding to conduct a strategic assessment to
inform advice to Government about the resourcing required to ensure the OAIC is
structured and resourced appropriately.
• Given the breadth of activities that make up the FOI and privacy functions and the
interrelationship between the functions of the three statutory officeholders, the strategic
assessment provides an opportunity to consider the structure and governance of the
OAIC.
15
Competition and Consumer Act 2010 (Cth) s 18.
16 See Division 4, Part 4 of the
Australian Securities and Investments Commission Act 2001 (Cth); Part 4 of the
Australian Communications and Media Authority Act 2005 (Cth).
17
Australian Human Rights Commission Act 1986, Part IIB; also see the AHRC, Guidelines on the distinct role
of the President and the Commissioners of the Australian Human Rights Commission in relation to
complaint handling and public comment, AHRC website, accessed 18 August 2023.
4
oaic.gov.au
Attachment A – Duties of officials under the
PGPA
Act 2013 Subdivision A—General duties of officials
25 Duty of care and diligence
(1) An official of a Commonwealth entity must exercise his or her powers, perform his
or her functions and discharge his or her duties with the degree of care and
diligence that a reasonable person would exercise if the person:
(a) were an official of a Commonwealth entity in the Commonwealth entity’s
circumstances; and
(b) occupied the position held by, and had the same responsibilities within the
Commonwealth entity as, the official.
(2) The rules may prescribe circumstances in which the requirements of subsection (1)
are taken to be met.
26 Duty to act honestly, in good faith and for a proper purpose
An official of a Commonwealth entity must exercise his or her powers, perform his
or her functions and discharge his or her duties honestly, in good faith and for a
proper purpose.
27 Duty in relation to use of position
An official of a Commonwealth entity must not improperly use his or her position:
(a) to gain, or seek to gain, a benefit or an advantage for himself or herself or any
other person; or
(b) to cause, or seek to cause, detriment to the entity, the Commonwealth or any
other person.
28 Duty in relation to use of information
A person who obtains information because they are an official of a Commonwealth
entity must not improperly use the information:
(a) to gain, or seek to gain, a benefit or an advantage for himself or herself or any
other person; or
(b) to cause, or seek to cause, detriment to the Commonwealth entity, the
Commonwealth or any other person.
29 Duty to disclose interests
(1) An official of a Commonwealth entity who has a material personal interest that
relates to the affairs of the entity must disclose details of the interest.
(2) The rules may do the following:
(a) prescribe circumstances in which subsection (1) does not apply;
(b) prescribe how and when an interest must be disclosed;
(c) prescribe the consequences of disclosing an interest (for example, that the
official must not participate at a meeting about a matter or vote on the
matter).
5
oaic.gov.au
Attachment B - FOI functions under the
Australian
Information Commissioner Act 2010
8 Definition of freedom of information functions
The
freedom of information functions are as follows:
(a) promoting awareness and understanding of the
Freedom of Information Act
1982 and the objects of that Act (including all the matters set out in
sections 3 and 3A of that Act);
(b) assisting agencies under section 8E of the
Freedom of Information Act 1982 to
publish information in accordance with the information publication scheme
under Part II of that Act;
(c) the functions conferred by section 8F of the
Freedom of Information Act 1982;
(d) providing information, advice, assistance and training to any person or agency
on matters relevant to the operation of the
Freedom of Information Act 1982;
(e) issuing guidelines under section 93A of the
Freedom of Information Act 1982;
(f) making reports and recommendations to the Minister about:
(i) proposals for legislative change to the
Freedom of Information Act 1982;
or
(ii) administrative action necessary or desirable in relation to the operation of
that Act;
(g) monitoring, investigating and reporting on compliance by agencies with
the
Freedom of Information Act 1982;
(h) reviewing decisions under Part VII of the
Freedom of Information Act 1982;
(i) undertaking investigations under Part VIIB of the
Freedom of Information Act
1982;
(j) collecting information and statistics from agencies and Ministers about the
freedom of information matters (see section 31) to be included in the annual
reports mentioned in section 30;
(k) any other function conferred on the Information Commissioner by
the
Freedom of Information Act 1982;
(l) any other function conferred on the Information Commissioner by another Act
(or an instrument under another Act) and expressed to be a freedom of
information function.
6
oaic.gov.au
FOI HEARING BRIEF Number-tbc
Increase in SES cap
• To be equipped to respond to regulatory chal enges and opportunities, the OAIC
requires internal expertise and technical and leadership capability, supported by
robust governance, security, risk, legal and corporate support. As an integrity agency,
the OAIC must be an exemplar of transparency, security and compliance.
• The OAIC was granted approval by the Minister for the Public Service, Senator the
Hon Katy Gallager to permanently increase its SES cohort to include a Senior Assistant
Commissioner, Assistant Commissioner Corporate and Assistant Commissioner
Consumer Data Right.
• The Senior Assistant Commissioner position was created to deliver the Chief
Operating Officer functions and enable the Deputy Commissioner to focus on
strategic regulatory matters and building analytical and tactical expertise across the
OAIC. The Senior Assistant Commissioner focus is ensuring that the OAIC has
capacity and capability to deliver its key activities within the ful range of
accountability frameworks set by government.
• This division of duties has met its objective and delivered results for the OAIC. It has
enabled the Deputy Commissioner to engage more deeply in the significant
regulatory action being undertaken by the OAIC, support Assistant Commissioner’s
with strategic guidance and purposefully engage with government on legislative and
policy proposals. Examples include the OAIC’s chairing of the DP-Reg forum and co-
chairing the Cyber Security regulator network.
• Similarly, the Senior Assistant Commissioner has led an uplift in the OAIC’s
governance frameworks and delivered an improvement in the APS Census results.
This position has engaged in the AGD’s COO network and been responsible for the
successful recalibration of the OAIC’s corporate reporting to ensure alignment with
best practice regulatory performance principles and delivered a number of significant
change management programs, including the change of shared services partners and
OAIC’s successful transition to a hybrid work model.
• The Assistant Commissioner, Corporate has successfully overseen the delivery of
enabling services across the OAIC - including finance, legal, human resources,
business analytics and reporting, and strategic communications functions, along with
management of a range of corporate services, including accommodation, office
management, records management information technology and management of
shared services functions of ICT with the Shared Delivery Office and Department of
Education and Workplace Relations.
Background
• The approved increase to the OAIC’s SES cohort has ensured it has the level of senior
executive leadership capability required to:
o deliver on the increasing complex demands on our core regulatory functions
o respond to current and expanding regulatory chal enges, including in
relation to well-resourced global entities
o actively regulate by ensuring legal, communications and corporate support
for guidance, investigations and seeking civil penalties as appropriate in the
Federal Court
o support key Government policies, including:
co-regulation of the Consumer Data Right
engagement in the APS Reform agenda
implementation of Regulator Best Practice
supporting the digital economy
deliberate coordination with domestic and international
regulators, to amplify and de-conflict regulatory outcomes.
Process followed to increase the cohort
• The OAIC received the support of the Attorney-General, the Hon Mark Dreyfus KC MP
and the Secretary to the Attorney-General’s Department, Ms Katherine Jones in
seeking to increase its SES cohort.
• The OAIC wrote to The Australian Public Service Commissioner (
Attachment A) in
March 2023 asking for his support and that he seek approval for the increase from
Senator the Hon Katy Gallagher, Minister for Women, Minister for Finance and
Minister for the Public Service.
• Minister Gallagher’s approval was obtained in April 2023 (
Attachment B) and three
additional positions were permanently added to the OAIC’s SES cohort. The ongoing
cohort is 7, with a temporary position (Assistant Commissioner, Major Investigations)
available to the OAIC until 30 June 2024 – bringing the current SES cohort is 8.
Signs of success
• The OAIC’s 2023 Census result show an improvement against each of the Indexes. The
OAIC now sits above the APS and small agency results across all six Indexes (see brief
#2)
• A table acquitting the tasks al ocated to the Senior Assistant Commissioner in July 2022
is at
Attachment C
2
• In her summary of the most recent Audit and Risk Committee meeting (May 2023)
(
Attachment D), the Chair of the Committee provided the fol owing observations to
the Information Commissioner:
o ‘In terms of the overal corporate operations of the agency the Committee has
been hugely impressed by the efforts of the corporate team under the
guidance of the Deputy Commissioner, Senior Assistant Commissioner and
Assistant Commissioner, Corporate is placing on substantial y strengthening
corporate operations in the OAIC’.
o ‘The performance report process has also been significantly refined and
strengthened and the Committee awaits the result of the stakeholder survey’
o ‘The further strengthening of the OAIC’s risk process is welcomed by the
Committee. The Committee has typical y seen the work in this space by the
OAIC as a strength. The work of the Senior Assistant Commissioner and
Director Governance and Risk in this space has strengthened further the
quality and value of this work’
o The strengthening of numbers in the People and Culture team and the
appointment of a recruitment specialist is a very significant initiative.
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3
Attachment C – Tasks of Senior Assistant Commissioner
Task
How task has been acquitted
Assess and align the OAIC’s risk
Risk and reporting frameworks have been uplifted and embedded into
and reporting frameworks to
business-as-usual processes. Risks are reviewed on a monthly basis and
ensure optimal efficiency, value
reported through Ops Committee and Audit & Risk Committee to
and transparency
Accountable Authority.
In response to the hybrid working environment of the OAIC, the agency
has updated its Business Continuity and Response Plan, Emergency
Response Procedures and Work Health and Safety policies, to ensure risks
are identified and mitigated to protect staff safety, health and wellbeing,
and to support business continuity.
NACC obligations socialised through all staff training and internal process
built to meet NACC obligations.
Lead and implement the
The OAIC’s Performance Measurement Framework was redesigned with
recalibration of the OAIC’s
expert advice in early 2022 and aligned with Principles of regulator best
corporate reporting to ensure
practice.
alignment with best practice
regulatory performance principles The Performance Measurement Framework is supported by defensible
and effectively communicates the and repeatable reporting methodologies. Reporting is undertaken by
OAIC’s activities and value
skil ed and experienced data experts within BARD. Branches of reporting
work wherever possible.
The OAIC’s first stakeholder survey has been designed, completed
and we are awaiting results.
Ensure the effective transition to
The new shared services arrangements have been embedded and
shared services is embedded and
capability of the finance and human resources team increased to
supported by people, policies and ensure that operational needs are met.
processes
Provide strategic leadership to
Consulted and setled OAIC Hybrid Work Principles.
successful y develop and
The OAIC’s recruitment methods are aligned with our hybrid work model,
implement activity based work
ensuring we engage the best talent from across Australia. This approach
arrangements that deliver on the
had strengthened our employee value proposition, offering flexibility, a
OAIC’s purpose
geographically diverse workforce and the ability to operate as a small and
agile agency that offers an employee-focused hybrid way of working.
Lead the delivery of activities
Census Roadmap delivered and 2023 Census results significantly
endorsed by Executive arising
improved. Attrition rate significantly decreased.
from the Census results
Establishment of revised budget
Budget delivered, budget reporting enhanced and agency’s financial
and financial reporting and
obligations met (delivered via CFO).
accountabilities
Development of the OAIC’s data
Data Strategy delivered, data warehouse under construction and
capabilities
money secured to conduct a systems review (delivered via Director,
BARD and Assistant Commissioner, Coprorate).
Commence a capability review of
Work undertaken with APSC’s Centre of Excel ence resulted in a
recruitment, retention, skills
draft workforce plan. This work has been superseded by Strategic
analysis, and learning
Review and improved Census results.
development strategies to equip
the OAIC as a contemporary
L&D calendar delivered.
4
regulator in the short, medium
and longer term
Lead the Operations and OCF
Ops and OCF have been led.
Committees
Also chaired Leadership, EL 1 Forum and Better Together
Committee.
Exercise the functions of Chief
Has exercised the CSA and Privacy Champion roles, in addition to
Security Advisor and Privacy
Chief Risk Officer and acquired Chief Information Governance
Champion.
Officer role as a result of review of IAGB and creation of
Information Governance Committee.
5
FOI HEARING BRIEF Number-20
Corporate
• OAIC’s Corporate Branch has grown in response to the OAIC’s operating environment. Notably, the OAIC
transitioned shared service providers requiring increased capability across finance and people and culture
areas. Additionally, the legal team received specified funding for specified activities.
Corporate Branch responsibility
• The Corporate Branch supports the regulatory work of the OAIC by delivering whole of
agency coordination, reporting, governance & risk, strategic communications, finance,
people & culture, legal and corporate services. This is distinct from other Branches,
which have a specialised area of focus and responsibility for a particular function of the
agency, for example FOI Branch is responsible for regulation under the FOI Act.
• When compared to the agency as a whole the ASL split for period ending 30 June 2023
is: Corporate 15% and legal 8% (total including legal 22%) 22%/ Other 78%.
• The benefits of a single corporate services group are that:
o it reduces costs,
o eliminates redundancies of duplicated activity,
o ensures consistency of service to the ‘outcome facing’ Branches, and
o ensures that resources are not diverted from the ‘outcome facing’ Branches.
• In the past 5 years the OAIC has grown from operational appropriation budget of
$13.825mil ion with an ASL cap of 93 (FY2018-19), to a budget of $46.470mil ion and
ASL cap of 192 (FY 2023-24).
• The funding structure of the OAIC has had a high proportion of terminating measures.
In FY2018-19 55.9% and FY2023-24 34.2% of operational funding were terminating
measures. This has required the OAIC to staff up quickly on short- and medium-term
funding.
30 June 2023: Corporate Branch has a broad remit covering:
Function
Deliverables
Effect on Branches
Legal
Management of OAIC
Management of OAIC FOI requests
(13 staff)
FOI requests, merits and transferred to Legal in 2018.
judicial review,
68% of OAIC’s current litigation
litigation, support major matters are privacy related, 32% is
investigations and
FOI focused.
provision of advice
across the Office
Finance
Budgeting, financial
Advice and support for obtaining
(4 staff)
reporting, accounting
funding through NPPs, developing
and financial
internal funding budgets, reporting
management, liquidity
financial performance to support
management,
economical, efficient, effective and
accounting
ethical application of resources
transactional work,
liaison with AGD etc
People & Culture
Recruitment,
Specialist advice to support
(5 staff)
onboarding, induction, effective recruitment strategies.
learning &
Wel being focus has improved
development, payrol
retention and Census results.
management, staff
reporting, improving
staff retention,
wellbeing, off-boarding.
Governance & Risk
Audit committee,
Uplift in control frameworks has
(1 staff)
internal audit, risk and
supported staff focus on regulatory
fraud, protective
matters, creation of Information
security, emergency
Governance Committee (and
management, control
disbandment of Information Access
frameworks,
Governance Board) has al owed FOI
information
additional time to focus on
governance, reporting. complaints and decisions
Corporate Services
Portfolio/Parliamentary Central coordination of QoNs,
(3 staff)
liaison and
Estimates serves as an efficiency for
coordination, physical
line areas. Support and advice on
security, records
records management, travel
management, facilities booking etc creates capacity in
management, lease
Branches to focus on regulatory
management, IT and
work (travel bookings and records
shared service
management we original y driven
management, travel
from Branches)
administration
2
Strategic
Media management,
Communications
communications
(7 staff)
development, website
development and
maintenance, events,
corporate reporting
including Annual report
and Corporate Plan,
intranet and internals
comms
Business Analytics, Data Data warehouse
Regular reporting conducted by
and Reporting (BARD)
development and
Branches is now undertaken by
(4 staff)
management, reporting data experts – uplifting processes
development and
and relieving Branches of this task
maintenance, data
development, analytics
capability development,
etc
Branch staffing
• OAIC’s ASL cap for the year ended 30 June 2023 was 167.
• OAIC’s actual ASL for the year ended 30 June 2023 was 137
• For the financial year ending 30 June 2023 Corporate had total ASL of 20.0, plus 10.4
assigned to Legal Services.
o The internal budget assigned 36.5 ASL, including 22.9 to general corporate area
and 12.6 in the legal team.
• The proposed 2023-24 Budget assigns 33.1 to Corporate and 19.2 to Legal Services.
• There have been several factors effecting both Corporate and legal summarised as
follows:
i. Enterprise bargaining (managing the bargaining process)
i . The operating loss (managing the extra legal work around
Medibank/Medilab)
i i. Shared Services Transition (bringing financial and P & C inhouse)
iv. Growth of the agency (increased support for matters like travel and IT
support through laptop distribution due to geographic spread and hybrid
working)
3
• The table below summarises these impacts:
Budget
Budget
AHRC to
Corporate
22-23
23-24
Change
Op Loss SDO/ Growth
Branch
Total
Total
YoY
NPPs
Optus Bargain
DEWR
23.
6
33.
1
9.
5 6.
0 1.
0 -
-
2.
0 0.
5
Finance
3.
0
4.
0
1.
0 -
-
-
-
1.
0 -
Corporate Services
5.
0
6.
0
1.
0 1.
0 -
-
-
-
-
Gov, Risk & Sec
2.
0
2.
0
-
-
-
-
-
-
-
Data & Reporting
3.
0
7.
0
4.
0 4.
0 -
-
-
-
-
People & Culture
4.
0
6.
0
2.
0 1.
0 -
-
-
1.
0 -
Strat Comms
5.
6
7.
1
1.
5 -
1.
0 -
-
-
0.
5
Branch
1.
0
1.
0
-
-
-
-
-
-
-
Legal
10.
8
19.
2
8.
4 3.
0 2.
0 1.
0 1.
0 -
1.
4
Note the 34.4 ASL (23.6 Corporate & 10.8 Legal) was in the original budget. This was
increased to an ASL of 36.5 for the March estimates brief due to the inclusion of the 8.5
months of 3 ASL under Optus (e.g. 3 x 8.5/12).
The overal changes across the branches are summarised below:
Budget
Actual
Proposed
2022-23
Proposed 2023-24
2022-23
2022-23
2023-24
Actual
Budget
ASL
ASL*
ASL
Total Branch
Total Branch
R&S
36.8
30.8
41.8
$4,501,388
$6,085,000
FOI
22.4
20.3
22.4 (+8.9)
$3,060,272 $3,207,200 (+$1,234,000)
DR
47.5
43.5
54.8
$6,184,987
$6,282,400
MI
5.6
2.9
7.5
$529,950
$1,805,700
Corporate
23.6
20.0
33.1
$4,108,906
$4,603,700
Legal Services
12.9
10.4
19.2
$7,416,107
$9,735,000
Executive
9.5
9.2
13.8
$3,406,583
$5,254,500
Designated funding
• The OAIC receives regular departmental appropriations each year adjusted for matters
such as efficiency dividends and wage cost index adjustments. To source additional
funding, either short term or ongoing, the OAIC submits a New Policy Proposal (NPP).
The NPP sets out the OAIC’s estimated effort to deliver the specific work program and
results in a Cost Agreement being issued noting the purpose for the extra funding and
the estimated resources required to deliver on that purpose. This includes the number
of ASL assumed in determining the resource requirement.
• The Corporate Branch rarely receives specific funding through NPPs, rather it is funded
through the overhead component of the NPPs.
4
• In the FY2023-24 budget the Corporate Branch received specific additional funding for
9 ASL set out below.
Budget 2024 - Funded ASL
NPP
Position
Function
Budget 2024: Stronger
3 x EL 2
Instruct all aspects of
privacy protection and
Legal Officers
litigation matters.
enforcement
Budget 2024: Stronger
3 x EL 2
Internal data analysts and
privacy protection and
2 X EL 1
cyber security experts
enforcement
1 x APS 6
Internal funding
• As noted above the Corporate Branch rarely receives specific funding through NPPs
(albeit there were 9 ASL specifical y funded in the FY2023-24 budget), rather it is
funded through the overhead component of the NPPs.
• When the NPPs are costed they use a Department of Finance costing model based on
average pay rates and overhead al ocations derived across Government. OAIC takes
the numbers provided and then applies OAIC’s costing structure to real ocate the
funds to cover the direct employee costs to the relevant branch(s) and then the
remaining funds to overhead and corporate branch to reflect extra resource
requirements, with the remainder going to the budget reserve.
• Using the Strengthening Privacy NPP as an example:
o NPP Employee costs (including al overheads)
$4.94M
o OAIC employee costs (including 25% on-costs)
$3.97M
o Available to cover overheads & corporate costs
$0.97M
(this is roughly 20% of total people funding of the NPP)
• The available funds are used to cover:
o Direct costs such as laptops, working from home al owance, onboarding costs
and per person DEWR and SDO MOU costs (total ing roughly 9%)
5
o Indirect corporate costs driven by increased activity and headcount e.g.
recruitment team increase, extra finance resource due to higher transaction
volumes.
o The remainder are included in the Commissioner’s contingency fund
Transition of shared services
• Finance, human resources, and IT services are provided through a shared service. The
shared service was moved from the Australia Human Rights Commission (AHRC) to the
Service Delivery Office (SDO) at the Department of Employment and Workplace
Relations (DEWR) for IT services.
• The change in service provider came into effect on 16 May 2022 resulted in a change in
service level. Unlike the shared services arrangements delivered by the AHRC, the
current shared service providers’ offering requires the OAIC to maintain a robust
internal finance and human resources capability, with the commensurate internal
controls and corporate reporting capacity.
• The recruitment activity resulting from additional privacy funding and staff attrition, as
wel as supporting staff through the pandemic and transition to a hybrid working
model, has required an increase in human resources staff. Additional internal
corporate support required as a result of the new shared services model has mostly
been funded from savings realised from the transition from the AHRC to the new
providers.
• An additional 8 FTE were required to increase capabilities and enable self-contained
across the Finance and People & Culture teams.
• Following the transition of shared services, the net cost increase/saving is $170,000,
assuming a ful year with fully implemented finance and people and culture teams. Per
the proposed FY2023-24 budget. Further, the costs assume 183 APS staff and 7 labour
hire staff.
6
Shared services savings
Role
Key responsibility
Finance and P&C fees
SDO fee
$600,000
DEWR fee
$960,000
Additional 8 FTE
$1,060,000
Total cost
$2,620,000
AHRC fee
$2,840,000
Net saving
$220,000
Additional positions to support shared services (as at 30 June 2023)
Role
Status
Key responsibility
Finance
Chief Financial Officer
Permanent position
Advice and support for funding,
budgeting and reporting to
support the Executive.
Assistant Director, Finance Permanent position
Team supervision and support
of CFO.
Finance Officer
Permanent position
Transactional support, including
taxation matters
Accounts Officer
Permanent position
Transactional support, including
accounts reconciliation
People and Culture
Assistant Director
Permanent position
Driving and managing agency
(Recruitment), People and
wide talent acquisition
Culture
processes and projects
Assistant Director
Permanent position
Managing and advising on the
(Workforce Capability),
development and
People and Culture
implementation of agency-wide
learning programs
People & Culture Adviser Permanent position
Providing HR generalist support
and advice to Branches, and
supporting Assistant Directors
People & Culture Officer
Permanent position
Managing day to day BAU and
providing HR advice and
guidance to business areas
7
Legal
• The OAIC Legal Team is a dedicated legal team within the Corporate Branch
responsible for the delivery of al OAIC legal services and the management of legal risk
and external legal expenditure in the OAIC.
• The core Legal services provided include:
o Providing legal advice across al OAIC functions and powers (including
complaints, guidance, law reform, procurement, and employment)
o Advising on investigations
o Identifying legal risks and issues that impact on the OAIC and its regulatory
obligations
o Manage and instruct on al OAIC litigation
o Processing FOI requests and reporting on our FOI decision making
o Engage and instruct al external legal service providers, including Counsel
FOI processing and statistical reporting
• The Legal team is responsible for processing al FOI requests made to the OAIC. The
Legal team also processes administrative access and APP12 requests made for access
to material held in the Legal team.
• As at 24 August 2023, the Legal team has
20 FOI requests and
6 administrative access
requests on hand.
Total number of FOI requests received by the OAIC as at 30 June 2023
2017–18 2018–19 2019–20 2020–21 2021–22 2022–23
Requests received
95
252
235
193
335
334
Personal
39
154
144
121
183
188
Other
56
98
91
72
152
146
Internal Review
2
21
13
17
25
56
Personal
10
7
12
14
26
Other
2
11
6
5
11
30
Total
97
273
248
210
360
390
• Please add in the number of litigation on hand and number of FOI requests. Also what
year did FOI agency processing move from the FOI Branch to legal?
• Would it be helpful to set out the type of current litigation we have on foot – that is
privacy/FOI
• The table below provides an overview of current litigation matters managed by the
Legal team. There are 31 open litigation matters as at 24 August 2023.
8
Jurisdiction
Federal Court
AAT
Supreme Court Qld
Privacy
11
8
2
FOI
3
7
Nil
Total
14
15
2
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Current at: 25/08/23
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