FOIREQ21/00263
From:
Shelley Napper
To:
"xxxxxx.xxxxxxxx@xxx.xxx.xx"; "FOI"
Subject:
CP21/01763 - Freedom of information complaint investigation – Notice on completion [SEC=OFFICIAL]
Date:
Wednesday, 6 October 2021 4:36:00 PM
Attachments:
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CP2101673 - s 86 Notice - Letter to Department.pdf
CP2101673 - s 86 Notice - Attachment A.pdf
CP2101673 - s 86 Notice - Annexure A.pdf
Our reference: CP21/01763
Agency reference: FOI/2021/053
Mr Philip Gaetjens
Secretary
Department of the Prime Minister and Cabinet
By email: xxxxxx.xxxxxxxx@xxx.xxx.xx
Through: xxx@xxx.xxx.xx
Freedom of information complaint investigation – Notice on
completion
Dear Mr Gaetjens
Please find attached a letter from Elizabeth Hampton, Acting Freedom of Information
Commissioner, and two relevant attachments.
If you would like to discuss this matter, please contact Irene Nicolaou on (02) 9284 9605 or email
xxxxx.xxxxxxxx@xxxx.xxx.xx.
Kind regards
Shelley Napper | Assistant Director
Investigations and Compliance
Freedom of Information Regulatory Group
Office of the Australian Information Commissioner
GPO Box 5218 Sydney NSW 2001
| oaic.gov.au
+61 2 9284 9721
| xxxxxxx.xxxxxx@xxxx.xxx.xx
|
|
|
Subscribe to Information Matters
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ATTACHMENT A
Notice on completion under s 86 of the FOI Act (CP21/01673)
M Parkins and the Department of the Prime Minister and Cabinet
On 9 June 2021 the Office of the Australian Information Commissioner (OAIC)
received a complaint under s 70 of the
Freedom of Information Act 1982 (Cth) (the FOI
Act) about the Department of the Prime Minister and Cabinet (the Department) in the
performance of its functions and the exercise of its powers under the FOI Act.
The complainant is M Parkins.
The complainant alleges the Department failed to provide a decision on their FOI
request of 3 April 2021 within the statutory timeframes set out in the FOI Act.
The FOI request related to this complaint is also the subject of an Information
Commissioner review (IC review) (MR21/00529).1
This Notice on Completion assesses the complaint against the FOI Act and the FOI
Guidelines2 to which agencies and ministers must have regard. I have considered the
complaint and the Department’s submissions in response when making these
findings.
Background
On 3 April 20213, the complainant made the FOI request to the Department
(FOI/2021/053). Following extensions of the statutory processing time permitted
under the FOI Act, the Department was required to provide a decision to the
complainant on 4 June 20214.
1 MR21/00529 ongoing at the time of this notice.
2 The Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act to which
agencies must have regard to in performing a function or exercising a power under the FOI Act.
3 The Department in its submissions of 29 September 2021 submit the lodgement date as 6 April 2021, the
Department’s decision of 5 July 2021 records the lodgement date as 3 April 2021.
4 The statutory processing period was extended under s 15AB of the FOI Act (RQ21/01068 and
RQ21/01414).
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On 4 June 2021, the Department was deemed to have refused access pursuant to
s 15AC of the FOI Act as it had not provided a decision to the complainant.
On 4 and 5 June 2021 the complainant sought IC review of the deemed access refusal
decision (MR21/00529) and lodged a complaint under s 70 of the FOI Act about the
Department’s non-compliance with the statutory processing period.5
On 2 September 2021, in accordance with s 75 of the FOI Act, the OAIC notified the
Department that it would investigate the complaint and requested the Department’s
response to the complaint.
On 29 September 2021, the Department provided a response to the notice and
request for information (
Annexure A).
Investigation results
Pursuant to s 87 of the FOI Act, the investigation results set out the matters that I
have investigated and my opinion and conclusions about the complaint. I have
considered the material provided by the Department and the complainant in this
investigation.
Issue: Compliance with statutory processing periods
Complainant’s allegation
The complainant alleges the Department failed to provide a decision on their FOI
request dated 3 April 2021 within the statutory timeframes set out in the FOI Act.
Legislative framework
The FOI Act provides a statutory timeframe of 30 days to process an FOI request
(s 15(5)).
The period can be extended by up to 30 days with the applicant’s agreement
(s 15AA), by 30 days if consultation with a third party is undertaken (s 15(6)), and by
30 days if consultation with a foreign entity is undertaken (s 15(8)).
An agency or minister may apply to the Information Commissioner for extension of the
statutory timeframe for complex or voluminous requests (s 15AB) or following a
deemed access refusal decision (s 15AC).
5 On 5 July 2021, the Department provided a decision to the complainant in response to their FOI request
of 3 April 2021.
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The statutory processing period does not include:
• the time taken in a request consultation process where the agency or minister has
given the applicant a notice about a practical refusal reason (s 24AB(8))
• the time elapsing between an applicant being notified that a charge is payable
and either
− the applicant paying the charge (or a deposit on account of the charge) or
− the agency varying the decision that a charge is payable (s 31).
Department’s submissions to complaint
On 29 September 2021, the Department provided its response to the complaint
(
Annexure A). The Department provided a chronology of the processing of the
request and advised that the delay in finalising the request was due to:
a) the request was complex and voluminous and required searching through
a large volume and range of complex and sensitive email and
b) all PM&C FOI decisions are to be noted by relevant Senior Executives and
the Prime Minister’s Office.
The Department did not explain to what extent the engagement with relevant
Senior Executives and the Prime Minister’s Office contributed to the processing
delay.
Discussion
The FOI request was made on 3 April 20216. Extensions to the statutory processing
time were sought and provided to the Department under s 15AB of the FOI Act on
the basis that the FOI request was complex or voluminous. Following extensions of
time permitted under the FOI Act, the Department was required to provide a
decision to the complainant by 4 June 2021, but did not do so until 5 July 20217.
Extensions to the statutory processing time under s 15AB of the FOI Act are provided
to ensure that the agency has adequate time to finalise the processing of the FOI
request in circumstances where the standard processing time of 30 days is
insufficient due to its complexity or volume.
6 Department decision letter dated 5 July 2021.
7 Department decision letter dated 5 July 2021.
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Where agencies or ministers make an application to extend the processing
timeframe under the FOI Act and the OAIC grants the application and extends the
processing period, agencies are expected to finalise the FOI request within that
extended period. In making a decision to extend the processing timeframe, the OAIC
is cognisant of the impact of that decision, which delays the deeming effect of
s 15AC(3) of the FOI Act that is enlivened when an agency fails to process an FOI
request within the 30 day period. In this particular matter, the OAIC’s decisions to
extend the processing period were based on the information that the Department
had provided, including information about the time needed to process the FOI
request. Following the decisions to grant the extensions of time, the Department was
expected to be in a position to provide a well-reasoned decision by the extended
decision date.
Conclusions
The Department did not comply with the processing period extended twice under
s 15AB of the FOI Act when processing FOI request FOI2021/053, in that:
a) the Department was required to provide a decision to the complainant by
4 June 2021, but did not do so until 5 July 2021
b) the Department sought and was granted extensions of time under s 15AB of
the FOI Act which were provided to the Department on the basis that the FOI
request was complex or voluminous
c) the Department considered the delay attributable to both the volume and
complexity of the FOI request and the Department’s internal clearance and
communication processes.
Recommendations
In considering whether to make any recommendations which I believe the
Department ought to implement, I have considered:
• the Department’s submissions of 29 September 2021
• recommendations made by the Information Commissioner into a
separate investigation about the Department’s compliance with
statutory timeframes which were implemented by the Department,
including recommendations that:
o a statement be issued to all staff highlighting the Department’s
obligations under the FOI Act
o the Department provide FOI training to new employees during
induction and annual refresher training to existing employees
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o the Department develop policies and procedures in relation to
administrative access to information
o the Department review its FOI processing guidance material and
conduct an audit into its compliance with statutory timeframes.8
Pursuant to s 88 of the FOI Act, I make the following formal recommendations to the
Department that I believe the Department ought to implement within the
timeframes specified below:
1. The Department appoint an Information Champion9 by
5 November 2021.
The Information Champion may be supported by an information governance
board to provide leadership, oversight and accountability necessary to
promote and operationalise the Department’s compliance with the FOI Act.
2. The Department provide training to FOI Section staff and relevant Senior
Executives by
5 January 2022 about the obligations under the FOI Act to
comply with statutory processing periods.
I request that the Department advise the OAIC of the implementation of each
recommendation within the timeframes specified.
8 OAIC reference numbers CP18/01243 and REC19/00001.
9 This recommendation is consistent with recommendations made by the Information Commissioner in
investigations into other agencies’ compliance with statutory processing timeframes. In those
investigations, the Information Commissioner recommended the appointment of an ‘Information
Champion’ to promote and operationalise compliance with the FOI Act, the preparation and
implementation of an operational manual for processing FOI requests and the provision of FOI training to
staff.
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Annexure A
Department’s response to s 75 Notice of investigation received 22 September 2021.
1. A chronology of the processing of the complainant’s FOI request, including the date the FOI
request was made, the date and reason for any extension of the statutory processing time, and
the date the decision was made and communicated to the complainant
Date
Event
06/04/2021 FOI request made to PM&C
23/04/2021 Request to Information Commissioner (IC) for a s 15AB extension of time
30/04/2021 PM&C fol owed up the s 15AB application to the IC
04/05/2021 IC advised that a s 15AB extension was granted until 02/06/2021
01/06/2021 FOI decision circulated for noting
04/06/2021 IC granted a further s 15AB extension until 04/06/2021
02/07/2021 Decision noted and prepared for release
05/07/2021 Decision released to the applicant.
2. Submissions regarding any delay in responding to the FOI request including submissions
addressing the issues raised by the complainant.
As advised in the s 15AB applications for extensions of time to the IC, this request was complex
and voluminous and required searching through a large volume and range of complex and
sensitive email.
In addition, as outlined in the publicly available PM&C FOI Business Rules, all PM&C FOI
decisions are to be noted by relevant Senior Executives and the Prime Minister’s Office.
3. Whether the Department extended the processing period in accordance with ss 15(6) or 15(7)
and
There were no extensions under ss 15(6) or 15(7).
4. Whether the Department had considered requesting an extension of time under ss 15AA, 15AB,
15AC or 54D of the FOI Act.
The Department sought and obtained two s 15AB extension of time from the IC.
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