FOIREQ20/00232 - 053
Commissioner brief: Digital Identity
Key messages
• The OAIC welcomes the development of legislation for the Digital Identity scheme.
1
• It is important that the legislation contains strong privacy protections to ensure that
the identity information of Australians is protected, regardless of which type of entity is
using that information.
• We consider that it is appropriate for the OAIC to regulate the additional privacy
protections that are introduced through legislation, and that participants that are not
currently covered by the Privacy Act or comparable privacy law must opt in to the Act
to ensure that there is a consistent application of privacy protection.
• The Digital Transformation Authority (DTA) has also received funding to expand Digital
Identity to connect a greater number of services to the system (including state and
territory services) over the next three years. The OAIC will receive funding in the 2021-
22 financial year to undertake two privacy assessments (audits) of the system and
develop guidance materials.
2
• We welcome the opportunity to engage with the DTA in its development of a privacy
protective scheme through our monitoring, guidance and advice functions.
Critical Issues
•
The DTA is currently undertaking two main areas of work in relation to Digital Identity:
o Developing legislation to underpin this scheme. This wil enable the scheme to be
used by State and Territory governments and the private sector, in addition to
Federal Government agencies. It is proposed that the legislation wil include
additional privacy protections related to the scheme.
o The DTA received funding in the 2020-21 Budget to expand the scheme over the
next three years. This wil include the rol out of the scheme to MyGov and a
greater number of consumer-facing services integrated with the scheme.
•
The OAIC is involved in both of these projects:
1 The development of legislation and the OAIC’s involvement in the expansion of the Digital Identity program are referred to in
the DTA’s 2020-21 PBS:
“As part of the 2020-21 Budget measure
JobMaker Plan – Digital Business Plan, the Australian Government has provided the
DTA with $50.2 million over two years from 2020-21. This funding is part of the broader commitment of $256.6 million to the
DTA and partner agencies to deliver Digital Identity.
Digital Identity is all about making it easier and safer for people and businesses to get services and do business online.
Expanding Digital Identity will see additional services connected to the system (including state and territory services).
Improvements to privacy and security protections will be assured by the Office of the Australian Information Commissioner
and the Australian Cyber Security Centre. A major component led by the DTA will be the development of legislation to
expand the use of Digital Identity beyond Commonwealth entities. The legislation will embed the highest level of privacy,
security protections and formalise ongoing governance arrangements for the system.” (p137 of Social Services portfolio PBS)
https://www.dss.gov.au/about-the-department/publications-articles/corporate-publications/budget-and-additional-estimates-
statements-budget-2020-21/portfolio-budget-statements-2020-21-budget-related-paper-no-112
2 See p 291 of OAIC 2020-21 PBS: https://www.ag.gov.au/system/files/2020-10/17%202020-
21%20Office%20of%20the%20Australian%20Information%20Commissioner%20PBS.PDF
FOIREQ20/00232 - 054
o The OAIC has consulted with the DTA since 2015 on the development of the
Trusted Digital Identity Framework, which is the system of rules and protocols
that underpin the Digital Identity scheme.
o We are now engaging with the DTA on the development of legislation for the
Digital Identity scheme, including as a member of the Steering Committee (OAIC
Band 2), and as an observer on a IDC to develop the legislation for the scheme
(OAIC EL2).
• The expansion of the Digital Identity scheme is intended to be used across many
widely used consumer-facing Government services, including Centrelink, Medicare and
the ATO. Legislation would also enable it to be rol ed out to State/Territory and private
sector services, and wil therefore involve identity verification across jurisdictions. The
privacy and security of the system wil be critical issues.
Possible questions
What is the OAIC’s role in relation to Digital Identity?
• The OAIC has worked with the DTA since the commencement of work on the Trusted
Digital Identity Framework, providing advice on the privacy aspects of the framework.
This role is continuing throughout the development of legislation for the Digital
Identity scheme, and expansion of the scheme to a wider range of services across
government. This work aligns with our strategic priority, set out in our Corporate Plan,
to influence and uphold privacy frameworks, influencing policy and legislative change
to ensure that these frameworks remain appropriate.
Do you think that the Digital Identity scheme adequately protects the privacy of
individuals?
• The OAIC has been pleased with the amount of focus the DTA has had on privacy
throughout the development of the TDIF and Digital Identity scheme.
• The OAIC wil continue to undertake our monitoring, advice and guidance functions in
relation to this work, to ensure that the DTA takes a best privacy practice approach to
the development of the proposed legislation and expansion of the Digital Identity
scheme.
The OAIC has received funding for Expanding Digital Identity commencing in 2021-22. Are
you required to undertake any activities this financial year and what will you do with the
funding next financial year?
• The OAIC is not receiving funding for activities in relation to this project in 2020-21,
however we wil continue to undertake our normal monitoring and guidance-related
functions to help ensure that the expansion of the scheme includes appropriate privacy
protections and aligns with the objects of the Privacy Act.
• The funding in 2021-22 wil enable the OAIC to undertake two privacy assessments
(audits) to proactively monitor the privacy protections built into the Digital Identity
program, which wil assist the Digital Transformation Authority to mitigate privacy risks
FOIREQ20/00232 - 055
with the system. This funding also includes provision for the OAIC to develop guidance
about the privacy aspects of the Digital Identity system.
Key dates
• 2014: The Financial Systems Inquiry (FSI) recommended a ‘national strategy for a
federated-style model of trusted digital identities’.
• 2015: DTA commenced work on the FSI recommendation, with the development of the
Trusted Digital Identity Framework (TDIF).
• 2019: DTA receives funding to develop legislation to underpin the Digital Identity scheme,
which wil incorporate many of the TDIF requirements into law and enable the scheme to
be used by State and Territory governments and the private sector, in addition to Federal
Government agencies.
• 2020: DTA receives approval for funding to expand the Digital Identity scheme to a larger
range of Commonwealth Government services, including many consumer-facing services
such as MyGov. OAIC receives funding as part of the budget measure (JobMaker Plan –
Digital Business Plan) to undertake two assessments and produce guidance.
Key Facts
• The Digital Identity Scheme wil act as a single, secure way to use government and private
sector services online. It intends to replace the 100-point identification check and remove
the need to visit government offices with identity documents. The DTA have stated that it
wil be voluntary to use the scheme.
• The scheme is currently in limited use, primarily for businesses and their representatives
through the MyGovID portal, which is operated by the ATO. The scheme is also being
piloted for some community-facing services, including the Unique Student Identifiers
scheme.
• The scheme is underpinned by the Trusted Digital Identity Framework (TDIF), which is a
set of rules and standards that accredited members must fol ow to take part in the Digital
Identity scheme.
• The framework aims to increase safety, security, consistency and reliability when
accessing government services online. Col ectively, the TDIF documents sets the
standards for:
o How personal information is handled by participating agencies and organisations
o The useability and accessibility of identity services
o Identity system security and fraud protection
o Identity system management and maintenance
o Framework governance.
• The DTA was recently provided with funding to develop the Digital Identity Bil (the Bil )
which wil underlie the scheme and incorporate many of the TDIF requirements into
FOIREQ20/00232 - 056
legislation. It is proposed that the legislation wil include additional privacy protections
related to the scheme.
The remainder of this brief is not public and should be taken as background only
• The DTA wil release a consultation paper on the Bil for release in late October 2020.
• 47C
• While the Digital Identity scheme is designed to operate within, and avoid duplication of,
the existing privacy frameworks, the Bil wil create the fol owing additional privacy
protections:
o restrictions or prohibitions to give effect to the voluntary, opt-in nature of the
Digital Identity program for individuals
o restrictions on the use of the Digital Identity based on a person’s age or capacity
o consistent data breach notifications for participants in DTA digital identity
program not subject to the Privacy Act mandatory data breach requirements
47C
o
• Other relevant restrictions for the scheme include:
o 47C
o 47C
o restricting the use and retention of biometrics for any other purpose other than
verifying a person’s identity.
• The DTA is also considering who wil regulate the scheme. At this stage, it appears that
the DTA may be favouring a single regulator for the entirety of the digital identity
framework.
• In paral el to the development of legislation, the DTA has just received funding approval
to significantly expand the scheme over the next three years. This wil include the rol out
of the scheme to MyGov and a greater number of consumer-facing services integrated
with the scheme.
OAIC position on Digital Identity Bil
• The OAIC has provided officer-level comments on redline issues in the scoping paper and
the options paper. Our key comments are:
FOIREQ20/00232 - 057
o The OAIC should regulate the additional privacy aspects of the scheme.
o To ensure that there is a consistent application of privacy protection, users
should be covered by equivalent privacy protections to the Privacy Act, either
through State/Territory laws or by opting into the Privacy Act.
o Use of the scheme should be voluntary, and entities should provide another
option for individuals to verify their identity, particularly for Government
services.
• It appears that the DTA is favouring placing the additional privacy obligations for the
scheme in the Digital Identity legislation.
Document history
Updated by
Reason
Approved by
Date
Sarah Croxall
October 2020 Senate
29/09/2020
Estimates
FOIREQ20/00232 - 067
Commissioner brief: 2019-20 Australian Government agency and
ministerial FOI statistics1 D2020/017448
Key messages
• The number of FOI requests made to Australian Government agencies and ministers in
2019–20
2 increased by approximately 6% over the previous year to 41,333 (when there
was a 13% increase in the number of requests compared with the previous year).
• The Department of Home Affairs, Services Australia (formerly the Department of
Human Services) and the Department of Veterans’ Affairs together continued to
receive the majority of FOI requests received by Australian Government agencies (70%
of the total). Of these, 95% are from individuals seeking access to personal information.
• Of al FOI requests made to agencies and ministers, 81% were for personal information
(33,584) and 19% for non-personal (7,749). This trend has been consistent over the
past 4 years.
• 13,727 FOI requests were granted in ful in 2019-20 (47% of al requests decided). This
represents a decline in the percentage of FOI requests granted in ful compared with
2018-19, when 52% of al FOI requests decided were granted in ful .
• 11,221 FOI requests were granted in part in 2019-20 (38% of al requests decided). This
represents an increase in requests granted in part compared with 2018-19, when 35%
of al requests decided were granted in part.
• 4,410 FOI requests were refused in 2019-20 (15% of al requests decided). This
represents an increase in requests refused compared with 2018-19, when 13% of al
requests were refused.
• 79% of al FOI requests decided in 2019-20 were decided within the statutory
timeframe. This is a decline in timeliness compared with 2018-19 (83%) and 2017-18
(85%) and may be due to the impact of the COVID-19 pandemic on agencies and
ministers’ ability to process FOI requests.
• There was a 25% decline in the amount of charges notified in 2019–20 ($267,069) than
in 2018–19. There was a 28% decline in the amount of charges col ected in 2019-20
($88,090) than in 2018-19.
• The total cost attributable to processing FOI requests in 2019–20 was $63.91 mil ion,
approximately 7% more than the previous financial year’s total ($59.85 mil ion).
• There was a 106% increase in the number of documents agencies and ministers made
available for direct download from their disclosure logs in 2019-20 (1,438) compared
with 2018-19 (719).
1 Percentages in this brief have been rounded to the nearest full number.
2 In 2019–20, 294 agencies reported FOI statistics to the OAIC (however due to MOG changes not all these agencies were in
existence at the end of the financial year).
FOIREQ20/00232 - 068
Statistics
Period Number of % personal Granted in Granted in Refused
5
%
requests to vs non-
full
3
part
4
processed
agencies
personal
within
statutory
timeframe
2019-
41,333
81% pers
47%
38%
15%
79%
20
(+6%)
(33,584)
(13,727)
(11,221)
(4,410)
(23,066)
(-2
(-5%
(+3
(+2
(-4
percentage percentage percentage percentage percentage
points)
points)
points)
points)
points)
19% non-
80% pers
personal
(19,002)
(7,749)
(+2
73% non-
percentage
pers (4,064)
points)
2018-
38,879
83%
52%
35%
13%
83%
19
(+13%)
personal
(15,623)
(10,541)
(3,980)
(24,893)
(32,440)
(+2
(+1
(-3
(-2
17% non-
percentage percentage percentage percentage
personal
points)
point)
points)
points)
(6,439)
83%
personal
(21,233)
80% non-
personal
(3,660)
2017-
34,438
82%
50%
34%
16%
85%
18
(-13%)
personal
(15,778)
(10,767)
(3,087)
(26,879)
(28,199)
(-2
(-1
(+6
(+27
18% non-
percentage percentage percentage percentage
personal
points)
point)
points)
points)
(6,239)
85%
personal
(21,952)
3 Expressed as a percentage of all FOI requests decided during the year.
4 Expressed as a percentage of all FOI requests decided during the year.
5 Expressed as a percentage of all FOI requests decided during the year.
FOIREQ20/00232 - 069
86% non-
personal
(4,927
2016-
39,519
82%
55%
35
%
10%
58%
17
(+4%)
personal
(18,877)
(11,767)
(3,385)
(19,607)
(32,383)
54%
18% non-
personal
personal
(16,343)
(7,136)
84% non-
personal
(3,264)
• The increase in FOI requests in 2019–20 was principal y driven by a substantial increase
in FOI requests made to Services Australia (+43%). Services Australia states that during
the second half of 2019–20, they experienced a surge in FOI requests from ‘a specific
cohort of applicants who were seeking access to very similar document types.’
FOIREQ20/00232 - 070
Table 2: Charges – notified and collected 2016-17 to 2019-20
Period
Number of Amount
% change
Amount
% change
requests
notified
from
col ected
from
notified
previous
previous
2019-20
716
$267,069
-25%
$88,090
-28%
2018-19
822
$357,039
-7%
$122,774
+6%
2017-18
1,029
$383,531
-24%
$115,863
-21%
2016-17
1,317
$505,394
+1%
$147,043
—
Practical refusals
• Agencies and ministers sent 71% more notices of an intention to refuse an FOI request
for a practical refusal reason in 2019–20 than in 2018–19 (3,803 in 2019–20, compared
with 2,225 in 2018–19). The reason for this increase was a substantial increase in the
number of practical refusal notices issued by the Department of Home Affairs (which
issued 792 notices in 2018–19 and 2,713 in 2019–20). The Department of Home Affairs
issued practical refusal notices for 15.45% of al the FOI requests it received during
2019–20. In 2017–18, 4,128 notices were issued (86% more than in 2018–19).
NOTE: the Department of Home Affairs advised on 21.10.2020 that it has wrongly
reported statistics relating to practical refusals, in particular in relation to the number
of requests subsequently processed after a practical refusal notice was sent.
Exemptions
• The personal privacy exemption (s 47F) remains the most claimed exemption. It was
applied in 38% of al FOI requests in which exemptions were claimed in 2019–20; the
same percentage as in 2018–19. The use of s 47F has declined over the past two years –
it comprised 43% of the exemptions applied in 2017–18.
• The next most claimed exemptions were s 47E (certain operations of agencies), s 37
(documents affecting enforcement of law and protection of public safety), s 47C
(deliberative processes), and s 38 (documents to which secrecy provisions apply). This is
similar to previous years.
• There was a 7% increase in amendment applications in 2019–20, with seven agencies
receiving 717 amendment applications (no applications were received by ministers). In
2018–19, 673 applications were received.
• See Com brief - Trends in use of exemptions in FOI Act D2020/017449.
Disclosure logs
Australian Government agencies reported publishing 1,949 new entries in disclosure logs
during 2019–20; including documents available for download directly from the agency or
minister’s website in relation to 1,468 requests, documents available from another
FOIREQ20/00232 - 071
website in relation to 56 requests, and 425 entries in which the documents are available
by another means (usual y upon request). This is approximately
62% higher than 2018–19,
when 1,200 entries were addedCosts
• The total cost attributable to processing FOI requests was $63.91 mil ion, almost 7%
more than 2018-19, when the total cost was $59.85 mil ion. The reason for the increase
in the overal cost of FOI activity is a 6% increase in the total staff hours devoted to FOI
in 2019–20.
• General legal advice costs ($719,718) decreased 53% compared with 2018–19
($1,517,125). Litigation costs ($911,551) increased approximately 120% from 2018–19
($414,635). General administrative costs ($136,634) decreased approximately 5% from
2018–19 ($144,140). Training expenses ($168,339) decreased 56% over 2018–19
($385,745). ‘Other’ non-labour costs ($242,585) decreased 8% from 2018–19
($263,206).
• The average cost per FOI request determined (granted in ful , in part or refused) was
$1,546 in 2019–20 (a fraction of a percentage more than in 2018–19).
Possible questions
•
How has the COVID-19 pandemic affected access to government documents through
FOI?
While some agencies have attributed increases in the number of FOI requests received
during 2019–20 to the impact of the COVID-19 pandemic, the increase in total FOI
requests (2,454 more than in 2019–20) is the direct result of a substantial increase in
FOI requests made to Services Australia (2,672 more requests than in 2018–19).
The COVID-19 pandemic affected the ability of some Australian Government agencies
to respond to FOI requests within the statutory timeframes in the FOI Act. In some
agencies, FOI staff were redeployed to work in frontline customer service roles while
the internal redeployment of other staff to meet service delivery needs made it
difficult to obtain documents to satisfy FOI requests and to engage with decision
makers, many of whom assumed additional responsibilities as part of their agency’s
response to the pandemic. Interagency consultation was more difficult, particularly
with agencies heavily involved in delivering Australia’s response to the pandemic.
For agencies with staff working remotely, some aspects of FOI processing was more
difficult, for example, manipulating large files and using redaction software can be
slower on domestic internet servers. In some cases the necessary IT infrastructure was
not in place to al ow staff to work from home, resulting in delays that affected
productivity. Posting and receiving hard copy documents, particularly for staff living in
locations subject to movement restrictions was difficult. For some agencies, the impact
of COVID-19 was more significant because they were in the early stages of integrating
functions fol owing machinery of government changes that came into effect on 1
February 2020.
Because of the issues outlined above, some agencies and ministers found it difficult to
meet the statutory timeframes in the FOI Act. This resulted in a significant increase in
FOIREQ20/00232 - 073
o agency resources, FAQs and the FOI Guidelines
o regular e-newsletters for FOI practitioners which provide practical guidance and
processing tips
o the publication of IC review decisions provides guidance to agencies in the use of
FOI Act provisions and the OAIC holds twice yearly information sessions for FOI
practitioners (although our ability to do this has been impacted by COVID-19
restrictions)
o the OAIC also operates an enquiry line that agencies can cal for advice and
guidance.
•
Why don’t more agencies make documents available to the public without requiring
an FOI request to be made?
The OAIC’s Corporate Plan identifies proactive disclosure of government held
information, including the establishment of administrative access schemes, as a key
focus for the coming year. We have suggested these items be included in the next
Open Government National Action Plan and we promote these through our
Information Contact Officers Network e-newsletters and information sessions.
Key dates (mandatory section / heading – not to be removed)
• N/A
Document history
Updated by
Reason
Approved by
Date
Nikki Edwards
Senate Estimates
Raewyn Harlock
29.9.2020
October 2020
FOIREQ20/00232 - 080
Commissioner brief: FOI Extension of time applications
Key messages
• An agency or minister must make a decision on an FOI request within 30 days, unless
the timeframe has been extended.
• Where an agency or minister is unable to process an FOI request within the processing
period, they may request an extension of time:
o from the FOI applicant (by agreement under s 15AA)
o from the Information Commissioner under:
s 15AB (complex or voluminous)
s 15AC (where the agency or minister has been
unable to process the
request within the statutory timeframe)
s 51DA (where the agency or minister has been unable to process the
request for
amendment or annotation)
s 54D (where the agency or minister has been unable to process an
internal review application within the statutory timeframe).
• Part 3 of the FOI Guidelines encourage agencies to seek agreement with the FOI
applicant prior to lodging an extension of time request with the OAIC.
• The OAIC requires agencies and ministers to provide supporting documentation during
the consideration of an extension of time application. The application must include
reasons why the request could not be processed within the statutory processing period
and provide a plan on how the further time (if granted) wil be utilised by the agency or
minister.
• It is important for agencies and ministers to consider early in the process whether an
extension of time is required, as an application for an extension of time is not an
automatic grant and each application is considered on its individual merits.
• In 2019–20, 79% of al FOI requests determined were processed within the applicable
statutory time period:
o 80% of al personal information requests and
o 73% of non-personal requests.
This represents a slight decrease in timeliness of decision-making from 2018–19
(when 83% were decided within time).
• In 2019–20, there was an increase in the number of FOI requests decided more than 90
days after the expiry of the statutory time period (including any applicable extension of
time provisions) when compared with 2018–19 (10% in 2019–20, up from 2% in 2018–
19).
FOIREQ20/00232 - 083
During the 1st quarter of 2020-2021, we have seen a significant reduction in the
number of agencies applying for extensions of time with COVID being provided as a
reason for seeking that extension.
In March 2020, the OAIC experienced a significant increase of extension of time
applications and notifications (489 total). Between March and June 2020, the OAIC
received 1,889 extension of time applications and notifications (ss 15AA, 15AB, 15AC,
51DA and 54D), that is an increase of 55% for the same period in 2019 (with 1,219
received in 2019).
•
What action is the OAIC proposing to take to address poor compliance with statutory
timeframes? The OAIC continues to monitor agency compliance with statutory
timeframes and works directly with some agencies to address this issue. We are
pleased to see overal improvements in timeliness since 2016-17 (where 58% of
requests were processed within the statutory timeframe). For 2019-20 79% were
processed within the statutory timeframe. Work undertaken by my office in promoting
compliance with statutory timeframes includes:
o making decisions extension of time applications
o using our formal powers to require provision of a statement of reasons when a
person seeks review of a deemed refusal
o investigating complaints about delay
o providing assistance through our enquiries phone line
o publishing regular e-newsletters for FOI practitioners and
o publishing resources on our website, including checklists to streamline the FOI
request process.
•
What information does the OAIC require from agencies and ministers prior to making
an extension of time decision? The OAIC requires:
o the name and contact details of the FOI applicant
o the scope of the FOI request
o the reasons for the delay
o an explanation of why the statutory timeframe is not able to be met.
Inadequate explanatory information to support the application for an extension may
cause the application to be declined. Further information is set out on our website: see
‘Extension of time provisions under the FOI Act’.
1
•
What factors does the OAIC take into consideration when considering an extension of
time application? Factors considered include:
o whether the FOI request is complex and/or voluminous
1 https://www.oaic.gov.au/freedom-of-information/guidance-and-advice/extension-of-time-for-processing-requests/.
FOIREQ20/00232 - 084
o the length of time that has been requested by the agency or minister
o whether other extension provisions have been applied
o whether adequate explanatory information has been provided to support the
application for an extension
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.
In some circumstances, the OAIC may consult with the FOI applicant. Any comments
the FOI applicant makes wil be taken into consideration.
•
How long can the OAIC grant an extension of time for? The Information
Commissioner may grant an extension of time for 30 days, or such other period as the
delegate of the Information Commissioner considers appropriate. The time period
requested by the agency or minister is based on the facts and circumstances of each
application.
•
Do you always grant an extension of time? No. Each application is considered on its
merits. Applicants may be consulted for their comments on the application, and those
comments wil be considered by the decision maker.
•
How many extensions of time applications were received from agencies and
Ministers in the1st quarter of this financial year? In the first quarter of this financial year the OAIC received 253 ss 15AB, 15AC, 51DA
and 54D applications from agencies and Ministers.
The OAIC was also notified by
agencies and ministers of a further 815 s 15AA agreements.
•
How many extensions of time applications were received from agencies and
Ministers in the last financial year?
In the 2019-20 financial year the OAIC received 1353 ss 15AB, 15AC, 51DA and 54D
applications from agencies and Ministers.
The OAIC was also notified by agencies and
ministers of a further 2,800 s 15AA agreements.
•
How many extension of time applications does the OAIC grant?
In the 1st quarter of FY2020-2021, the OAIC granted 82% of al extension of time
applications received that require an Information Commissioner decision.
In 2019-20, the OAIC granted 69% of al extension of time applications received that
require an Information Commissioner decision. The OAIC ‘granted varied’ 10% and
refused 15%. Four percent of the applications received by the OAIC were subsequently
withdrawn.
•
Have you issued any guidance about what FOI applicants can do if they have not
received a decision within time?
The OAIC has published information about an individual’s review rights and the
availability of Information Commissioner review where a decision has not been made
FOIREQ20/00232 - 085
within time.
2 If an agency or minister doesn’t make a decision on the FOI request
within the required time, the FOI request is taken to have been refused. Any charge
the agency or minister asked to pay is no longer due, and any deposit must be
refunded. In these circumstances, the FOI applicant has the right to ask for Information
Commissioner review of this decision (internal review does not apply to this kind of
decision).
Document history
Written by
Reason
Approved by
Date
Shel ey Napper
October 2020 Senate Angelene Falk
October 2020
estimates
2 OAIC website: https://www.oaic.gov.au/freedom-of-information/how-to-make-an-foi-request/when-to-expect-a-decision/ and
https://www.oaic.gov.au/freedom-of-information/reviews-andcomplaints/information-commissioner-review/.
FOIREQ20/00232 - 088
Commissioner brief: FOI Complaint issues
Key messages
• Complaint issues:
o The most complained about issue is delay by agencies processing FOI requests.
o Other complaints relate to (in order of most complained about):
failure to provide assistance during the practical refusal consultation
process
the imposition of charges
failure to acknowledge FOI request
searches
extension of processing time to consult with third party but no
consultation required
poor administration/customer service
poor communication/failure to update
failure of decision maker to provide name
poor record keeping (leading to an inability to find requested documents)
the Information Publication Scheme
deletion of public servants’ personal information from documents before
release.
• I am of the view that making a complaint is not an appropriate mechanism where IC
review is available, unless there is a special reason to undertake an investigation and
the matter can be dealt with more appropriately and effectively as a complaint. IC
review wil ordinarily be the more appropriate avenue for a person to seek review of
the merits of an FOI decision, particularly an access refusal or access grant decision.
• The OAIC wil soon publish a summary of the de-identified outcomes of finalised FOI
investigations on the OAIC website.
Statistics
Period
Number
Number
Finalisation
S 86 notices – with
received
finalised
timeframe
and without
recommendations
FOIREQ20/00232 - 089
2019-20
109 (increase
71 (increase
48% > 12
46 issued:
of 79% on
223% on
months
•
previous year) previous year)
27 with
52% <12
recommendations
months
• 19 without
recommendations
2018-19
61 (decrease
22 (decrease
18% > 12
Nil s 86 issued
of 2% on
of 24% on
months
previous year) previous year) 82% <12
months
2017-18
62 (72%
29 (61%
17% > 12
5 issued:
increase on
increase on
months
•
previous year) previous year)
4 with
83% <12
recommendations
months
• 1 without
recommendation
• Number of complaints on hand at 30 September 2020: 136
• Percentage of complaints on hand are more than 12 months old: 47%
• For an overview of the status of finalised FOI complaints please see
Attachment A to
this brief.
Possible questions
•
Your evidence is that delay is the most complained about issue. What action is the
OAIC taking to address this?
The OAIC oversees the extension of time provisions in the FOI Act which provides
valuable insight into the issues that affect agencies’ ability to comply with decision
making timeframes. The OAIC is currently reviewing its guidance material to focus on
the need for agencies to take action early in the processing cycle and to routinely
engage with applicants when processing FOI requests. The OAIC is currently monitoring
agencies’ compliance with statutory decision making timeframes.
•
What department or agency is the most complained about and what kinds of
complaints are people making?
s 47E(d)
The Department of Home Affairs complaints are almost exclusively about delay. Of the
13 complaints regarding delay finalised by the Commissioner in 2019 – 20, the
Commissioner found that the Department had not complied with the statutory
processing period in al 13 complaints (relating to 17 case studies). In light of the
FOIREQ20/00232 - 090
related CI into the Department’s processing of request for non personal information
the Commissioner deferred making any recommendations until the outcome of the CI .
s 47E(d)
•
What recommendations have you made to improve FOI processing within agencies?
I have made a number of recommendations for agencies to:
• issue statements – by the CEO or Secretary – to all staff highlighting the
agency’s obligations under the FOI Act
• conduct audits on its processes
• update its policies and procedures in relation to FOI processing consistent with
the findings of specific investigations
• take remedial action including contacting FOI applicants where I found that
review rights had not been included in the response to FOI requests pursuant
to s 26 of the FOI Act to advise them of their review rights
• implement training processes for staff.
•
Are agencies implementing your recommendations?
Yes. Agencies have not raised any objections and have taken steps to implement my
recommendations.
•
What happens if agencies do not implement your recommendations?
Under s 89 of the FOI Act I have the discretion to issue a notice of implementation
requiring an agency to provide particulars of steps the agency has taken to implement
a recommendation. Where an agency does not comply with the implementation notice
I can provide a report to the responsible minister.
Document history
Updated by
Reason
Approved by
Date
Irene Nicolaou
Estimates October
Angelene Falk
October 2020
2020
1 The OAIC has commenced investigation in three of these complaints.
FOIREQ20/00232 - 102
Commissioner brief: FOI Disclosure Logs D2020/017452
Key messages
• In October 2019, the OAIC began work on a desktop review of agency compliance with
disclosure log obligations. A key focus of the review is whether agencies make
documents directly available for download to members of the public.
• Our report is near finalisation and wil be published soon.
Critical facts
• Section 11C of the FOI Act requires agencies to publish information released in
response to FOI requests within 10 days of release to the FOI applicant, unless the
documents contain personal or business information that it would be unreasonable to
publish. Subsection 11C(3) provides three options for publication:
1. directly on the agency’s website
2. linking to another website from which the information can be downloaded
3. publishing details of how the information can be obtained on the agency’s website.
• The FOI Guidelines state that publication of documents directly on an agency’s website,
rather than describing the documents and how they can be obtained on request, is
consistent with the FOI Act object of facilitating access to government information.
Further, the Explanatory Memorandum to the
Freedom of Information Amendment
(Reform) Bil 2009 states that information is to be published to the public general y on a
website, and it is only if the information cannot readily be published in that way that
the website should give details of how the information can be obtained
.
• In December 2018 and January 2019 an individual made FOI requests through the
‘Right to Know’ website to 12 Departments that do not make documents directly
available through their disclosure logs, but which instead require an email to be sent
requesting access. The individual sought access to al documents not directly available
for download. Many Departments treated this as a formal request for access when a
decision had already been made on access, imposed with charges and applied a 30-day
processing period (in one case the agency asked for a 30-day extension to process the
‘request’). Several Departments issued practical refusal notices.
• This issue was brought to our attention via social media and the ‘Right to Know’
website.
• The OAIC’s desktop audit assessed al Australian Government departments (those
subject to the FOI Act), as wel as the 20 agencies that receive the largest number of
FOI requests for non-personal information that result in release of documents.
• The desktop review assessed:
− the form in which access is provided (directly on the website, linked to another
website or on request)
FOIREQ20/00232 - 104
(Disclosure Log) to provide more guidance to agencies which wil enable them to
better meet their disclosure log obligations (for more information see Commissioner
Brief - Changes to Disclosure Log Guidelines D2020/017619). We wil take regulatory
action if required. Further, we wil work directly with agencies to ensure more
government held information is made available to the Australian public.
Key dates
• December 2018/January 2019 – 12 FOI requests made to Australian Government
Departments for access to documents not directly available for download from agency
disclosure logs.
• October 2019 to December 2019 – desktop review conducted.
Document history
Updated by
Reason
Approved by
Date
Nikki Edwards
Senate Estimates
Raewyn Harlock
20.9.2020
October 2020
FOIREQ20/00232 - 225
Commissioner brief: FOI Act Reforms D2020/000764
Key messages
• The review of charges under the FOI Act published in 2012, and the Hawke Report into
the FOI Act in 2013, identified a number of areas in which changes could be made to
the FOI Act which will increase its ability to delivery transparency and accountability for
the Australian public.
• The FOI Act provides a sound basis for providing access to government held
information to the Australian public through formal FOI requests, the disclosure log and
the Information Publication Scheme. 47C
47C
47C
Critical facts
•
Charges review: On 7 October 2011, the Minister for Privacy and Freedom of
Information, the Hon Brendon O’Connor, issued terms of reference for a review of
charges under the FOI Act. The Australian Information Commissioner issued a discussion
paper on 31 October 2011, and received 23 submissions from agencies and applicants.
The review report was published in February 2012. The review made ten
recommendations for a new charges framework. These recommendations include
encouraging administrative access; introducing discretionary FOI application fees to
encourage people to use an administrative access scheme before resorting to the FOI
Act; no FOI processing charge for first five hours and a flat $50 fee for work between five
and 10 hours; 40 hour ceiling on processing time (including for personal requests which
are not subject to charges); specific access charges for activities such as supervising
inspection; a reduction in charges for delayed processing; introduction of an IC review
fee if the applicant does not first seek internal review, and indexation of al FOI fees and
charges to the CPI.
FOIREQ20/00232 - 226
The Executive Summary and Recommendations are at
Attachment A. The OAIC’s current
position in relation to the recommendations made by the Information Commissioner in
the Charges Review is at
Attachment B.
•
Hawke review: On 29 October 2012, the Attorney-General issued terms of reference for
a review of the operation of the FOI and AIC Acts under s 93B of the FOI Act and s 33 of
the AIC Act. On 1 July 2013, after considering 81 submissions, Dr Hawke finalised his
‘Review of the
Freedom of Information Act 1982 and
Australian Information
Commissioner Act 2010’.
The Hawke Report concluded that the FOI reforms of 2010 were operating as intended
and were general y well received, however many of the concerns raised in submissions
were not directly addressed in the reform packages. The Hawke Report made 40
recommendations against seven broad themes; the FOI Act framework, the OAIC’s
structure and processes, the two-tier system of merits review, exemptions, FOI Act
coverage, charges, regulatory and administrative burden. Dr Hawke also published a ‘FOI
Better Practice Guide’ for Australian government agencies and practitioners.
The Executive Summary, including the 40 recommendations, is at
Attachment C. The
OAIC’s submissions to the Hawke Report are at
Attachment D.
•
Belcher Red Tape Review: The ‘Independent Review of Whole-of-Government Internal
Regulation’ (the Belcher Red Tape Review) was published in August 2015. This
recommended that entities examine their FOI practices to ensure they impose the least
burdensome mechanisms for responding to FOI requests and consider more active
publication of information to decrease FOI requests. It also recommended that AGD
consider whether the IPS could be consolidated with other government initiatives for
enhancing public accessibility of government information, such as the digital
transformation agenda.
To reduce the administrative burden on entities, AGD should reduce the frequency of
reporting FOI matters from quarterly to annual y and seek the Government’s agreement
to prioritise implementation of the Hawke report to reduce the regulatory burden and
improve the operation of the FOI Act and consider issues raised about exemptions and
the scope of access to information under the FOI Act to enhance its operation.
•
ANAO Review: On 19 September 2017, the
Australian National Audit Office published a
report on
Administration of the Freedom of Information Act 1982. This report reviewed
the role of the OAIC and recommended that we develop an approach to verifying the
quality of data input and develop and publish a statement of our regulatory approach.
The audit also looked at how three entities (the Department of Veterans’ Affairs, the
Department of Social Services and the Attorney-General’s Department) processed FOI
requests. The report investigated the assistance provided to applicants, whether
agencies conducted reasonable searches for documents, timeliness of decision making,
the application of exemptions and whether internal reviews were conducted
appropriately.
FOIREQ20/00232 - 227
•
FOI Amendment Bil : On 22 August 2018, Senator Rex Patrick introduced the
Freedom
of Information Legislation Amendment (Improving Access and Transparency) Bil 2018
into the Senate. It was referred to Committee, which held a public hearing in Canberra
on 16 November 2018. Nine submissions were received. The Committee issued its
report on 30 November 2018 which did not recommend that the Senate pass the Bil .
The Bil proposed the fol owing amendments to the FOI Act:
o require government to fil al three offices of the Australian Information
Commissioner, the Privacy Commissioner and the Freedom of Information
Commissioner.
o add a new category of decision that may be appealed to the AAT and al ow
applicants to apply to the AAT for review of any IC reviewable decision without first
going through the Information Commissioner review process. An applicant taking
this option would pay the usual AAT application fee.
o require the Information Commissioner to notify an IC review applicant if is likely that
more than 120 days wil elapse before a decision under s 55K wil be made, or that
120 days has elapsed since the IC review application was made. The Information
Commissioner’s notice must state that an application to transfer the IC review
application to the AAT may be made to the OAIC.
o require the consistent application of exemptions by decision makers in the context
during IC review.
o require the Information Commissioner and Privacy Commissioner to hold legal
qualifications if making IC review decisions.
o require publication of documents on a disclosure log between 10 and 14 working
days after access is given.
o require publication of al external legal expenses incurred in relation to FOI matters.
o Senators and Members of the House of Representatives are not subject to FOI
charges unless the work generated by an access application involves charges
total ing more than $1000.
There was a brief second reading debate of the bil on 31 August 2020, during which
both Liberal and Labour Senators spoke against it.
•
Thodey Review of the APS: In May 2018 the government commissioned an independent
panel to review the Australian Public Service. The committee received more than 700
submissions. On 19 March 2019, a draft report, ‘APS Review: Priorities for change’, was
published. One key priority identified was ‘an open APS, accountable for sharing
information and engaging widely’ which draws on Australia’s Open Government National
Action plan and refers to New Zealand’s decision to proactively release some
traditional y confidential material.
On 13 December 2019, the
Independent Review of the Australian Public Service was
published. Relevantly, the review made the fol owing recommendation:
Government to commission a review of privacy, FOI and record-keeping
arrangements to ensure that they are fit for the digital age, by:
FOIREQ20/00232 - 228
- supporting greater transparency and disclosure, simpler administration and faster
decisions, while protecting personal data and other information, and
- exempting material prepared to inform deliberative processes of government from
release under FOI.
The government did not agree to implement this recommendation. Government noted
the recommendation, saying the government’s principal focus is to ensure agencies
effectively implement current requirements, addressing practical problems where
required and that further reform would be considered separately to the Government’s
response to the APS Review.
•
Domestic and internal enforcement mechanisms: A domestic and international
comparison reveals the following legislative measures to address non-compliance by
agencies fol owing the exercise of enforcement powers by the regulator in reviewing FOI
decisions:
o reports to the Prime Minister/House of Representatives (New Zealand)
o judicial review proceedings (New Zealand)
o contempt of court proceedings (United Kingdom), and
o summary offence proceedings with a maximum penalty of a $1,000 fine (Canada).
A table setting out the relevant jurisdiction, legislation and enforcement mechanism is at
Attachment E.
Possible questions
•
Is the FOI Act working to achieve transparency and accountability in government?
The FOI Act provides a sound basis for providing access to government held information
to the Australian public, through formal FOI requests, the disclosure log and the
Information Publication Scheme. 47C
•
What are your suggestions for improvement to the FOI Act?
47C
FOIREQ20/00232 - 229
47C
•
The media has reported that the Australian government is becoming more secretive.
What are you doing to improve transparency and accountability in government?
I continue to make IC review decisions which provide guidance to Australian
Government agencies. We continue to update the FOI Guidelines. We are reviewing
agency compliance with their disclosure log obligations. We completed a review of
agency compliance with their IPS obligations in June 2019.
•
What are your thoughts on the recommendation made by the Thodey review of the
APS that material prepared to inform the deliberative processes of government should
be exempt from release under the FOI Act?
The deliberative processes conditional exemption in s 47C of the FOI Act protects
information which relates to the opinions, advice or recommendations obtained,
prepared or recorded, or consultation or deliberations that have taken place for the
deliberative processes of an agency or a minister or the government. It does not apply
to ‘purely factual material’. In my view this exemption, which is subject to a public
interest test, adequately protects the ability of government officials to develop policy,
debate issues, and to brief ministers and government where appropriate.
The rights and interests of the Australian public would be significantly impacted if the
deliberative processes of government are not subject to an overriding public interest
test. It could undermine the objects of the FOI Act, which include that Australia’s
representative democracy is enhanced by increasing public participation in government
processes with a view to promoting better informed decision making and increasing
scrutiny, discussion, comment and review of the government’s activities.
•
Do you consider the FOI Act needs to be amended so that the FOI Act continues to
apply when a Minister changes?
The FOI Act gives a right of access to an ‘official document of a minister’. Unless
documents are required to be retained as National Archives, General Records Authority
No. 38 provides they can be destroyed when the exiting Minister ceases to hold a
ministerial post. If the documents are retained as National Archives, they wil not be
able to be accessed for 20 years - until the open access period commences.
47C
FOIREQ20/00232 - 230
47C
Key dates
• February 2012 – Australian Information Commissioner issues report into charges under
the FOI Act.
• 22 May 2013 – Australia announces decision to join the Open Government
Partnership.
• 1 July 2013 –Hawke Report into the operation of the FOI Act.
• August 2015 – Belcher red tape review published.
• 19 September 2017 – Australian National Audit Office publishes report ‘
Administration
of the Freedom of Information Act 1982’.
• 22 August 2018 – Senator Rex Patrick introduced
Freedom of Information Legislation
Amendment (Improving Access and Transparency) Bil 2018 into the Senate.
• 13 December 2019 – Thodey review of Public Service and the government’s response
published.
• 31 August 2020 – Second reading debate of
Freedom of Information Legislation
Amendment (Improving Access and Transparency) Bil 2018, during which both Liberal
and Labour Senators spoke against it.
Document history
Updated by
Reason
Approved by
Date
Nikki Edwards
Senate Estimates
Raewyn Harlock
29.9.2020
October 2020
FOIREQ20/00232 - 231
Attachment A
Review of charges under the Freedom of Information Act 1982
Executive summary and recommendations
Background to this inquiry
The Freedom of Information Act 1982 (FOI Act), upon commencement in 1982, authorised agencies and
ministers to impose charges for providing access to documents. The type and scale of charges were set out
in the Freedom of Information (Charges) Regulations 1982 (Charges Regulations). In deciding on a charge
an agency is to observe the stated objective of the FOI Act to facilitate public access to government
information promptly and at the lowest reasonable cost (s 3(4)).
Changes have been made only four times to the charges provisions. The first change occurred in 1985
when an FOI application fee was introduced. Next, in 1986 a charge for decision making was introduced,
and the current scale of charges was set. The third change was in 1991, when a cap was imposed on the
charge that could be levied for a request for personal information. The most recent changes in 2010 were
part of an extensive reform of the FOI Act, and were of two kinds: application fees were removed from
FOI access requests, applications for internal review, and requests to amend or annotate personal records
FOI charges were removed from access requests for personal information, for the first five hours of
decision making time for other requests, and where an agency fails to notify a decision on a request within
the prescribed processing period.
At the time of introducing these recent substantial reforms into the Parliament, the Government
foreshadowed that it would ask the Australian Information Commissioner to review the charges regime
within a year of the 2010 reforms commencing. This review commenced in October 2011, and involved
publication of a discussion paper, consultation with the public and Australian Government agencies and
advisory committees, and consideration of written submissions.
Main issues raised in inquiry
Issues that were highlighted by agencies in submissions and during consultations included:
• the suitability of the charges scale, which has not altered since 1986
• the need to simplify the charges framework
• the useful role that charges play in initiating a discussion with applicants about narrowing and
refining the scope of broad requests, and the difficulties agencies face in using s 24AB of the FOI
Act (the ‘practical refusal’ mechanism) to achieve the same effect
• the problem of large and complex applications from specific categories of applicants who use the
FOI Act rather than rely upon other means to obtain information (such as law firms that use the
FOI Act as a form of discovery, and members of parliament, journalists, researchers and the
media)
• the need for further guidance from the OAIC regarding the application of the FOI Act provisions
for waiving and reducing charges, particularly in assessing an applicant’s claim of financial
hardship or that disclosure would be in the public interest.
Applicants and members of the public, by contrast, emphasised the importance of:
• minimising cost barriers to the exercise of the democratic right of access conferred by the FOI Act
• ensuring that charges do not discriminate against economically disadvantaged applicants
• preventing the introduction of a full cost-recovery principle for FOI charging.
FOIREQ20/00232 - 232
Various proposals for reform were made, including:
• simplifying the charges scale by combining some existing charges into a single hourly processing
charge
• introducing a graduated charging scale under which the charge increases based on the time an
agency spends in processing a request
• prescribing a ceiling on the amount of time an agency is required to spend on processing a request
• charging according to the amount of information released
• charging according to the category of applicant
• imposing an FOI application fee and abolishing all other processing charges.
Guiding principles to underpin a new charges framework
Fees and charges play an important role in the FOI scheme. It is appropriate that applicants can be required
in some instances to contribute to the substantial cost to government of meeting individual document
requests. Charges also play a role in balancing demand, by focusing attention on the scope of requests and
regulating those that are complex or voluminous and burdensome to process.
On the other hand, full cost-recovery would be incompatible with the objects of the FOI Act and would
strike unfairly against large sections of the community. This has been accepted during 30 years of the FOI
Act, as the reported fees and charges collected by agencies represent only 2.08% of the estimated total
cost of administering the FOI Act (1.68% in 2010–11). The FOI reform objective in 2010 was to further
reduce the cost to the community of obtaining government information and to promote greater
transparency in government.
A balance must be struck, but the current method in the FOI Act and Charges Regulations of striking that
balance is inadequate. The charging framework is not easy to administer; charges decisions cause more
disagreement between agencies and applicants than seems warranted; in some cases the cost of assessing
or collecting a charge is higher than the charge itself; and the scale of charges is outdated and unrealistic.
This report proposes four principles to underpin a new charges framework:
•
Support of a democratic right: Freedom of information supports transparent, accountable and
responsive government. A substantial part of the cost should be borne by government.
•
Lowest reasonable cost: No one should be deterred from requesting government information because
of costs, particularly personal information that should be provided free of charge. The scale of charges
should be directed more at moderating unmanageable requests.
•
Uncomplicated administration: The charges framework should be clear and easy for agencies to
administer and applicants to understand. The options open to an applicant to reduce the charges
payable should be readily apparent.
•
Free informal access as a primary avenue: The legal right of access to documents is important but
should supplement other measures adopted by agencies to publish information and make it available
upon request.
Recommendations for a new charges framework
Recommendations are made in Part 5 of this report to replace the current charges framework in the FOI
Act and Charges Regulations with a new framework that can be summarised as fol ows:
1.
Administrative access: agencies are encouraged to establish administrative access schemes that enable
people to request access to information or documents that are open to release under the FOI Act. A
FOIREQ20/00232 - 233
scheme should be set out on an agency’s website and explain that information wil be provided free of
charge (except for reasonable reproduction and postage costs).
2.
FOI application fees: to encourage people to use an administrative access scheme prior to using the FOI
Act, an agency may in its discretion impose a $50 application fee if a person makes an FOI request
without first applying under an administrative access scheme that has been notified on an agency’s
website. A person who applies under an administrative access scheme and is not satisfied with the
outcome or who is not notified of the outcome within 30 days may make an FOI request without paying
an application fee. The agency’s exercise of the discretion to impose a $50 application fee would not be
externally reviewable by the Information Commissioner (IC reviewable), nor subject to waiver on
financial hardship or public benefit grounds.
3.
FOI processing charges: no FOI processing charge should be payable for the first five hours of
processing time (which includes search, retrieval, decision making, redaction and electronic
processing). The charge for processing time that exceeds five hours but is less than 10 hours should be
a flat rate of $50. The charge for each hour of processing after the first 10 hours should be $30 per
hour.
4.
Ceiling on processing time: an agency should not be required to process a request that is estimated to
take more than 40 hours. The agency must consult with the applicant before making that decision. This
ceiling will replace the practical refusal mechanism in ss 24, 24AA and 24AB. An agency decision to
impose a 40-hour ceiling would not be IC reviewable, though the agency’s 40-hour estimate would be
reviewable.
5.
FOI access charges: specific access charges should apply for other activities, such as supervising
document inspection ($30 per hour), providing information on electronic storage media (actual cost),
postage (actual cost), printing ($0.20 per page) and transcription (actual cost).
6.
Personal information: there should be no processing charge for providing access to documents that
contain an applicant’s personal information, but personal information requests should be subject to the
40-hour ceiling applying to other requests.
7.
Waiver: the specified grounds on which an applicant can apply for reduction or waiver of an FOI
processing or access charge should be financial hardship to the applicant, or that release of the
documents would be of special benefit to the public. An agency may waive a charge in full or by 50% or
decide not to waive. An agency would also have a discretion not to impose or col ect an FOI application
fee or processing or access charge; the exercise of that general discretion would not be an IC
reviewable decision.
8.
Reduction for delayed processing: where an agency fails to notify a decision on a request within the
prescribed statutory period, the FOI charge that is otherwise payable should be reduced by 25% if the
delay is seven days or less, 50% if more than seven but up to and including 30 days, or 100% for a delay
of more than 30 days.
9.
Review application fees: there should be no application fee for internal review. Nor should there be an
application fee for IC review, if an applicant first applies for internal review and is not satisfied with the
decision or is not notified of a decision within 30 days. If an applicant applies directly for IC review
when internal review was available, a fee of $100 should be payable. The fee should not be subject to
waiver.
10.
Indexation: al FOI fees and charges should be adjusted every two years to match any Consumer Price
Index change over that period, by rounding the fee or charge to the nearest multiple of $5.
Explanation of the proposed changes
The proposed changes are explained fully in this report. The theme throughout is that applicants and
agencies can equally benefit from a new charges framework that is clear, easy to administer and
understand, encourages agencies to build an open and responsive culture, and provides a pathway for
applicants to frame requests that can be administered promptly and attract little or no processing charge.
There are three primary ways for bringing this change about.
FOIREQ20/00232 - 234
The first is by encouraging agencies to develop, and applicants to use, administrative access schemes
before resorting to the formal legal processes of the FOI Act. Administrative schemes can play a key role in
meeting the objectives of the FOI Act. They can provide quick and informal information release in a way
that can reduce the cost both to applicants and agencies. Importantly, they complement and do not
detract from the legally enforceable right of access under the FOI Act. In fact, the discussion that occurs
between applicants and agencies at the administrative access stage can assist the smooth operation of the
FOI Act and bring about targeted and quicker document release if FOI processes are later used.
The second is by introducing a new scale of FOI charges that is clear and straightforward to administer. The
new scale will markedly benefit applicants whose requests can be processed in less than 10 hours. Personal
information requests will remain free of processing charges. A new ceiling of 40 hours on processing time
would replace the ‘practical refusal’ mechanism in the FOI Act that makes it difficult to decide when a
complex or voluminous request imposes an unreasonable administrative burden upon an agency. This wil
also provide a clear standard for deciding when consultation should occur between an agency and an
applicant about revising and narrowing the scope of a request that appears unmanageably large.
The third is by reinforcing the important role that internal review can play in quickly and effectively
resolving a disagreement between an applicant and an agency about a document request. Internal review
is generally quicker than IC review and enables an agency to take a fresh look at its original decision. An
applicant could stil apply directly for IC review but would be required to pay an application fee of $100
(subject to some exceptions). This proposal builds on a changing mood within government since the 2010
reforms to attribute greater importance to internal review and to treat it as a valuable step in resolving
access requests.
FOIREQ20/00232 - 236
Recommendation 4 – FOI processing ceiling
47C
4.1
An agency or minister should have a discretion to refuse to process a request
for personal or non-personal information that is estimated to take more than 40 hours
to process. 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 waiver
5.1
The specified grounds on 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 al or part of the charge would cause financial hardship to the
applicant, or
• 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 ful , by 50%
or not at al . The decision would be an IC reviewable decision.
5.3
An agency should also have a general discretion not to impose or col ect 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 beyond statutory timeframe
6.1
Where an agency fails to 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 IC review fees
7.1
No fee should be payable for an application for internal review.
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.
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
8.1
Al FOI fees and charges should be adjusted every two years to 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 to an agency decision
9.1
An applicant should be required to respond within 30 days after receiving a
notice under s 29(8), advising of a decision to reject whol y 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 al owed
by an agency) the FOI request should be deemed to be withdrawn.
FOIREQ20/00232 - 237
Attachment C
Review of the
Freedom of Information Act 1982 and
Australian Information Commissioner Act 2010 (Hawke
Report) (1 July 2013)
Executive Summary
This Review examined the
Freedom of Information Act 1982 (FOI Act) and
Australian Information
Commissioner Act 2010 and the extent to which those Acts continue to provide an effective framework for
access to government information. The Terms of Reference are at
Annex A.
The FOI Act commenced on 1 December 1982. In 2009 and 2010, both the FOI Act and the processing and
administrative framework were substantially amended by the
Freedom of Information (Removal of
Conclusive Certificates and Other Measures) Act 2009, Freedom of Information Amendment (Reform) Act
2010, Australian Information Commissioner Act 2010, and
Freedom of Information (Fees and Charges)
Regulations 2010 (No. 1).
Submissions from 81 individuals, agencies, and organisations were considered (including confidential
submissions) and consultations held with key stakeholders, including government agencies, academics, and
public interest groups as part of this Review. Relevant reports by the Australian Law Reform Commission,
Australian National Audit Office, Commonwealth Ombudsman, Office of the Australian Information
Commissioner (OAIC), and the Senate Standing Committee on Legal and Constitutional Affairs were also
taken into account. A list of submissions is at
Annex B.
Summary of Findings
The Review finds that the reforms have been operating as intended and have been generally well-received.
Many concerns in submissions raised issues not directly addressed by the 2009 and 2010 reform packages.
Administration of FOI represents a significant cost and resource commitment for the Australian Government
and its agencies. A key challenge for agencies, and for the OAIC, is to adopt and maintain practices to
process FOI requests effectively and efficiently within their resources.
Legislative and administrative changes to streamline FOI procedures, reduce complexity and increase
capacity to manage FOI workload both by agencies and the OAIC are recommended. The Review also
recommends changes and adjustments to the operation of the exemptions, fees and charges, and coverage of
specific agencies. In making these recommendations, the Review focussed on ensuring that the right of
access to government information remains as comprehensive as possible.
There are exemptions for certain classes of documents and agencies. The Review believes that these are
warranted despite their limiting effect on the release of government information. The most used exemption
is the personal privacy exemption, being applied in 58% of cases where exemptions were used, or in 17.3%
of FOI requests.
The deliberative processes exemption was applied in 1.5% of requests and the Cabinet documents exemption
in 0.5% of requests. This suggests that the use of these two exemptions, contrary to some views, is at a very
low level.
Guide to this Report
FOIREQ20/00232 - 238
Chapter One provides background, including previous reviews and reports on Australia's federal FOI and the
scope of this Review. It outlines the reforms to the framework as well as a brief description of the FOI
process.
Chapter Two discusses the OAIC and examines its structure and processes, including the Advisory
Committees. Resourcing and suggestions to alleviate particular issues faced by the OAIC are explored.
Chapter Three addresses the background to and effectiveness of the new two-tier system of merits review.
Specific suggestions for improvements made by submissions are considered.
Chapter Four explores reformulation of the FOI Act exemptions. It examines both the principles and
practical reasons for and effect of the existing exemptions and the impact of abolishing conclusive
certificates.
Chapter Five looks at the specific agencies covered by the FOI Act and those that are exempt. It examines
application of the FOI Act to the Parliamentary Departments as well as considering whether the range of
documents covered by exemptions makes agency exemptions necessary.
Chapter Six examines the effectiveness of the FOI fees and charges framework and the OAIC’s
recommendations in its FOI Charges Review.
Chapter Seven considers the FOI regulatory and administrative burden, including discussion of best practice
initiatives and recommendations to enhance administration of the FOI Act at an agency level, including time
limits and practical refusal mechanisms.
Chapter Eight sets out some conclusions.
Recommendations
Chapter 1: Introduction
Recommendation 1 – Further Comprehensive Review
1(a) The Review recommends that a comprehensive review of the FOI Act be undertaken.
1(b) This review might also consider interaction of the FOI Act with the
Archives Act 1983, Privacy Act
1988 and other related legislation.
Chapter 2: Office of the Australian Information Commissioner (OAIC)
Recommendation 2 – Online Status of FOI Reviews and Complaints
The Review recommends the OAIC consider establishing an online system which enables agencies and
applicants involved in a specific FOI review or FOI complaint investigation to monitor progress of the
review or complaint.
Chapter 3: Effectiveness of the New Two-Tier System of Review
Recommendation 3 – Delegation of Functions and Powers
The Review recommends that section 25 of the
Australian Information Commissioner Act 2010 be amended
to allow for the delegation of functions and powers in relation to review of decisions imposing charges under
section 29 of the FOI Act.
Recommendation 4 – Power to Remit Matters to Decision-maker for Further Consideration
The Review recommends the FOI Act be amended to provide an express power for the Information
Commissioner to remit a matter for further consideration by the original decision-maker.
Recommendation 5 – Resolution of Applications by Agreement
The Review recommends the FOI Act be amended to make it clear that an agreed outcome finalises an
Information Commissioner review and, in these circumstances, a written decision of the Information
Commissioner is not required.
FOIREQ20/00232 - 239
Recommendation 6 – Third Party Review Rights
The Review recommends the FOI Act be amended to provide that only the applicant and the respondent are
automatically a party to an Information Commissioner review. Any other affected person would be able to
apply to be made a party to the review.
Recommendation 7 – Extensions of Time
The Review recommends 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.
Recommendation 8 – Agreement to Extension of Time Beyond 30 Days
The Review recommends that section 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 Time for Consultation on Cabinet-related Material
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 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 External Review
The Review recommends that the two-tier external review model be re-examined as part of the
comprehensive review of the FOI Act.
Chapter 4: Reformulation of the FOI Act Exemptions
Recommendation 11 – Law Enforcement and Public Safety
The Review recommends the 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 surveillance, 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 Documents
The Review recommends the exemption for Cabinet documents be clarified by including definitions of
‘consideration’ and ‘draft of a document’.
Recommendation 13 – Ministerial Briefings
The Review recommends that the FOI Act be amended to include a conditional exemption for incoming
government and incoming minister briefs, question time briefings and estimates hearings briefings.
Recommendation 14 – Information as to Existence of Documents
The Review recommends that section 25 of the FOI Act be amended to cover the Cabinet exemption.
Chapter 5: Consideration of Specific Agencies Covered by the FOI Act
Recommendation 15 – Parliamentary Departments
The Review recommends the FOI Act 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 Australian Crime Commission from the FOI Act
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.
FOIREQ20/00232 - 240
Recommendation 17 – Review of Agencies Listed in Part I of Schedule 2 to the FOI Act
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) All other agencies currently in Part I of Schedule 2 should justify their exclusion from the FOI Act to
the satisfaction of the Attorney-General. If they do not do this within 12 months, they should be
removed.
17(c) The Attorney-General should also consider whether there is a need to include any other agencies in
Schedule 2.
Recommendation 18 – Criteria for Assessment of Agencies Exempt in Respect of Particular
Documents
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 Agencies Listed in Part II of Schedule 2 to the FOI Act
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) All agencies in Part II of Schedule 2 to the FOI Act should justify their exclusion from the FOI Act to
the satisfaction of the Attorney-General. If they do not do so, they should be removed from Part II of
Schedule 2.
19(c) The Attorney-General should also consider whether there is a need to include any other agencies in
Part II of Schedule 2.
Recommendation 20 – Review of Agencies Listed in Schedule 1 to the FOI Act
20(a) The Review recommends Schedule 1 to the FOI Act be amended to repeal the bodies listed, as they no
longer exist.
20(b) The Attorney-General should also consider whether there is a need to include any tribunals, authorities
or bodies in Schedule 1.
Chapter 6: Fees and Charges
Recommendation 21 – 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 Processing Charges
22(a) The Review recommends that a flat rate processing charge should apply to all processing 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
for waiver of charges should continue to apply.
Recommendation 23 – FOI Access Charges
23(a) The Review recommends that a flat rate access charge should apply to all access supervision 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 Processing Time for FOI requests
The Review recommends introduction of a 40-hour processing time ceiling for FOI requests.
FOIREQ20/00232 - 241
Recommendation 25 – Reduction and Waiver of FOI Charges
25(a) The Review recommends that 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 Beyond Statutory Timeframe
26(a) The Review recommends adoption of a sliding scale for reduction of charges where decisions are not
notified within statutory timeframes in 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 Fees for Information Commissioner Review for Review of Access
to Non-personal Information
27(a) The Review recommends that an application fee of $400 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 Fees and Charges
The Review recommends that all fees and charges are adjusted every two years in accordance with the CPI
based on the federal courts/AAT provision for biennial fee increases.
Recommendation 29 – Timeframes for Applicants to Respond to Agency Decisions
29(a) The Review recommends that an applicant should be required to respond within 30 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.
Chapter 7: Minimising Regulatory Burden on Agencies
Recommendation 30 – Practical Refusal Mechanism
The Review recommends section 24AA(1)(b) of the FOI Act be repealed to make it clear that the practical
refusal mechanism can only be used after an applicant has provided information to identify the documents
sought.
Recommendation 31 – Time Periods in the FOI Act to be Specified in Working Days
31(a) The Review recommends that where appropriate, the FOI Act be amended so that time periods are
specified in terms of ‘working days’ rather than calendar days.
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 Vexatious Requests
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The Review recommends the FOI Act be amended to permit agencies to decline to handle a repeat or
vexatious request or requests that are an abuse of process, without impacting on the applicant’s ability to
make other requests or remake the request that was not accepted. The applicant can appeal against such a
decision to the OAIC.
Recommendation 33 – Anonymous Requests
33(a) The Review recommends the 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-General of Intelligence 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.
Recommendation 35 – Amendment of Personal Records and the Archives Act
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 Website for all Disclosure Logs
The Review recommends the disclosure log for each agency and minister should be accessible from a single
website hosted by either the OAIC or data.gov.au to enhance ease of access.
Recommendation 37 – Minimum Timeframe for Publication of Disclosure Log
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
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 of FOI Processing During Litigation
The Review recommends the FOI Act be amended so that the processing of 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 Tapes
The Review recommends the FOI Act be amended so that a search of a backup system is not required, unless
the agency or minister searching for the document considers it appropriate to do so.
FOIREQ20/00232 - 244
Recommendation 16 – Exclusion of Australian Crime Commission from the FOI Act
47C
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 Agencies Listed in Part I of Schedule 2 to the FOI Act
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) All other agencies currently in Part I of Schedule 2 should justify their exclusion from the FOI
Act to the satisfaction of the Attorney-General. If they do not do this within 12 months, they
should be removed.
17(c) The Attorney-General should also consider whether there is a need to include any other agencies
in Schedule 2.
Recommendation 18 – Criteria for Assessment of Agencies Exempt in Respect of Particular
Documents
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 Agencies Listed in Part II of Schedule 2 to the FOI Act
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 All agencies in Part II of Schedule 2 to the FOI Act should justify their exclusion from the FOI
Act to the satisfaction of the Attorney-General. If they do not do so, they should be removed from
Part II of Schedule 2.
19(c) The Attorney-General should also consider whether there is a need to include any other agencies
in Part II of Schedule 2.
Recommendation 20 – Review of Agencies Listed in Schedule 1 to the FOI Act
20(a) The Review recommends Schedule 1 to the FOI Act be amended to repeal the bodies listed, as
they no longer exist.
20(b) The Attorney-General should also consider whether there is a need to include any tribunals,
authorities or bodies in Schedule 1.
Recommendation 21 – 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 Processing Charges
22(a) The Review recommends that a flat rate processing charge should apply to all processing 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 for waiver of charges should continue to apply.
Recommendation 23 – FOI Access Charges
23(a) The Review recommends that a flat rate access charge should apply to all access supervision
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 Processing Time for FOI requests
The Review recommends introduction of a 40-hour processing time ceiling for FOI requests.
Recommendation 25 – Reduction and Waiver of FOI Charges
25(a) The Review recommends that 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 Beyond Statutory Timeframe
FOIREQ20/00232 - 245
47C
26(a) The Review recommends adoption of a sliding scale for reduction of charges where decisions are
not notified within statutory timeframes in 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 Fees for Information Commissioner Review for Review of
Access to Non-personal Information
27(a) The Review recommends that an application fee of $400 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 Fees and Charges
The Review recommends that all fees and charges are adjusted every two years in accordance with the
CPI based on the federal courts/AAT provision for biennial fee increases.
Recommendation 29 – Timeframes for Applicants to Respond to Agency Decisions
29(a) The Review recommends that an applicant should be required to respond within 30 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 Refusal Mechanism
The Review recommends section 24AA(1)(b) of the FOI Act be repealed to make it clear that the
practical refusal mechanism can only be used after an applicant has provided information to identify the
documents sought.
Recommendation 31 – Time Periods in the FOI Act to be Specified in Working Days
31(a) The Review recommends that where appropriate, the FOI Act be amended so that time periods are
specified in terms of ‘working days’ rather than calendar days.
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 Vexatious Requests
The Review recommends the FOI Act be amended to permit agencies to decline to handle a repeat or
vexatious request or requests that are an abuse of process, without impacting on the applicant’s ability to
make other requests or remake the request that was not accepted. The applicant can appeal against such a
decision to the OAIC.
Recommendation 33 – Anonymous Requests
33(a) The Review recommends the 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-General of Intelligence 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.
Recommendation 35 – Amendment of Personal Records and the Archives Act
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.
FOIREQ20/00232 - 246
47C
Recommendation 36 – Single Website for all Disclosure Logs
The Review recommends the disclosure log for each agency and minister should be accessible from a
single website hosted by either the OAIC or data.gov.au to enhance ease of access.
Recommendation 37 – Minimum Timeframe for Publication of Disclosure Log
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
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 of FOI Processing During Litigation
The Review recommends the FOI Act be amended so that the processing of 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 Tapes
The Review recommends the FOI Act be amended so that a search of a backup system is not required,
unless the agency or minister searching for the document considers it appropriate to do so.
FOIREQ20/00232 - 247
Attachment D
OAIC’s submission to the Review of the Freedom of Information Act 1982 and Australian Information
Commissioner Act 2010 (Hawke Report)
Please note that in light of the passage of time and current environment, the OAIC’s current position may
differ from the position in 2012. Similarly, the OAIC’s consideration of recommendations proposed by the
Hawke Review may need to be reviewed to reflect the current environment.
The OAIC’s submissions to the Hawke Review of freedom of information legislation (December 2012)
included the fol owing suggestions for reform that would help improve efficiency of the IC review
process/OAIC functioning.
• Remove Part V of the FOI Act so the Privacy Act provides the sole mechanism for amendment requests.
• Remove the prohibition in the AIC Act on delegation of the IC review decision-making power under s 55K of the
FOI Act.
• Remove the barrier to delegation of Information Commissioner complaint handling powers.
• Authorise the Information Commissioner to remit a matter to an agency or minister for reconsideration.
• Broaden the grounds on which the Information Commissioner can decide not to undertake an IC review.
• Broaden the grounds on which the Information Commissioner can decide not to investigate a complaint.
• Provide a clearer mandate and powers for the Information Commissioner to resolve IC review applications by
agreement between the parties to a review.
• Remove the requirement in s 15AA to notify the OAIC of extensions of time by agreement and otherwise limit
the OAIC’s role in approving extensions of time to situations where an FOI applicant has sought IC review or
lodged a complaint about delay processing a request.
• Reduce the use of the FOI process for legal discovery by means such as introducing a 40-hour cap on processing
time or by adopting the Queensland model where access may be refused if the document can be accessed under
another Act or under arrangements made by an agency, whether or not access is subject to a fee or charge.
• Introduce a partial exemption under the FOI Act for the OAIC in respect of the OAIC’s merits review and
complaint functions.
• Amend the FOI Act so that an agency may refuse to process a request if, after having assisted the applicant to
clarify the scope of the request, the processing time would exceed 40 hours.
• Consider whether action needs to be taken regarding the timing of disclosure log publication, in particular
considering the issues potentially affecting the use of the FOI Act by applicants with a special interest in being
granted access to documents prior to publication on an agency or ministerial disclosure log.
In 2013, the OAIC considered a range of recommendations made in the Hawke Report and either
supported or did not oppose the fol owing suggestions for change (selected because they may impact on
the efficiency of the IC review/complaint handling processes).
• Limiting access when information is available free of charge, or when information that would substantial y
address the subject matter of the request is regularly made publicly available, in annual reports or otherwise,
within a certain timeframe and revise the disclosure log requirements to expressly require publication of the
terms of an FOI request (Neutral/could support but need more information).
• Streamline FOI processing and access charges, including indexation of fees and charges (Neutral/could support,
more information needed).
• Provide that a search of backup tapes is not required unless the agency or minister considers it appropriate
((Neutral/could support, more information needed).
FOIREQ20/00232 - 248
• Amend the FOI Act to provide for the delegation of the Information Commissioner’s powers in charges decision
(Support).
• Give the Information Commissioner power to remit matters to the original decision maker for further
consideration (Support).
• Allow for the resolution of applications by agreement without requiring a formal IC decision (Support).
• Only the applicant and respondent are automatically parties to an IC review (other affected persons can apply to
be made parties) (Support).
• Clarify the operation of the IC’s discretion to decide not to undertake an IC review if the AAT is dealing with, or
has dealt with, the matter (Support).
• Clarify s 54W(b) to include factors to take into account when considering whether it is in the interests of the
administration of the FOI Act for the IC review to be considered by the AAT. Factors identified include if matter is
complex or resource intensive; whether the decision was made by a minister or the principal officer of the
agency; or whether the decision refusing access concerns national security or cabinet documents (Neutral/could
support – question need for change).
s 47E(d)
s 47E(d)
s 47E(d)
s 47E(d)
s 47E(d)