Dear Office of the Australian Information Commissioner,

What is a reasonable time for FOI agencies to respond to and finalise requests for documents listed on an agency's disclosure log?

Does the OAIC know which FOI agencies provide access to their disclosure log documents online, and which do not?

Does the OAIC seek consistency in practice between FOI agencies in how they meet their disclosure log requirements? If not, why not?

Yours faithfully,

Julie

FOIDR, Office of the Australian Information Commissioner

5 Attachments

Our ref: EN22/01596

 

Dear Julie

 

Thank you for your enquiry below.

 

Please accept our apologies for the delay in responding.

 

A member of our FOI Regulatory Group will be in contact with a response
soon.

 

Please direct any future FOI related enquiries to our FOI Regulatory Group
directly at mail to: [1][email address].   

 

Kind regards

 

Tania Strathearn

[2][IMG]   Intake and Early Resolution Team

Freedom of Information Regulatory Group

Office of the Australian Information
Commissioner

GPO Box 5218 Sydney NSW 2001  |
 [3]oaic.gov.au

1300 363 992 [4][email address]
[5][IMG] | [6][IMG] | [7][IMG] |   [8]Subscribe to OAICnet newsletter

 

 

 

 

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Carly Warren, Office of the Australian Information Commissioner

Dear Julie

Thank you for your enquiry which has been forwarded to the Regulatory Advice team for a response.

What is a reasonable time for FOI agencies to respond to and finalise requests for documents listed on an agency's disclosure log?

I understand your enquiry relates to a request for a document listed on an agency's disclosure log, where the agency has given details of how to obtain the document (s 11C(3)(c)). The FOI Act does not specify a time period for agencies to respond to and finalise these requests.

Does the OAIC know which FOI agencies provide access to their disclosure log documents online, and which do not?

The OAIC does not assess agency disclosure logs on an ongoing basis. However, in 2019 and 2021, the OAIC undertook a desktop review of agency disclosure logs, which examined 38 government agencies to assess disclosure log compliance and practices. The OAIC's findings and recommendations, including which of the agencies make documents available for download directly from their website, can be found in the Disclosure Log Desktop Review Report https://www.oaic.gov.au/freedom-of-infor... desktop-review.

The OAIC's annual report also includes information on the number of listings on agency's disclosure logs that have been published under ss 11C(3)(a), (b) and (c) respectively. Agencies and ministers report this information to the OAIC on a quarterly basis, and the information is collated annually for the OAIC's annual report.

The OAIC publishes the data it collects on data.gov.au. The returns data since 2011-12 is available in CSV format and in a summary Excel spreadsheet.

Does the OAIC seek consistency in practice between FOI agencies in how they meet their disclosure log requirements? If not, why not?

In the Disclosure Log Desktop Review Report, the OAIC recommended that agencies and ministers make documents available for download directly from their website and only ask members of the public to contact them for access when they are unable to upload a document due to the size of the file, the need for specialist software to view the information, or for any other reason of this nature. Such an approach is consistent with the object of the FOI Act to facilitate and promote public access to information promptly and at the lowest reasonable cost.

Following the Disclosure Log Desktop Review, the OAIC updated its guidance and resources to assist agency compliance and to support better practice.

Further information about the disclosure log is in Part 14 of the FOI Guidelines https://www.oaic.gov.au/freedom-of-infor.... Further information about disclosure log best practice can be found in the Disclosure Log Desktop Review Report https://www.oaic.gov.au/freedom-of-infor....

I hope the above is of assistance.

Kind regards
Carly

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Dear Carly Warren,

Thank you for your belated response. Can I seek clarification in regards to the below response:

'What is a reasonable time for FOI agencies to respond to and finalise requests for documents listed on an agency's disclosure log?'

'I understand your enquiry relates to a request for a document listed on an agency's disclosure log, where the agency has given details of how to obtain the document (s 11C(3)(c)). The FOI Act does not specify a time period for agencies to respond to and finalise these requests.'

Does this mean the Information Commissioner takes no view or action on reasonableness or on an agency's compliance with the objects (s 3) of the FOI Act with respect to the providing access to documents released under FOI?

I ask because even though you refer to no specific fixed timeline to provide access in the Act (presumably because the Act adopts a principle based approach as to reasonableness of conduct in the circumstances rather than a fixed rule), the objects still require such provisions to be interpreted so as to:

* require agencies to publish the information (s 3(1)(a); and

* require agencies to perform such functions, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost to the requester (s 3(4)).

Would the Information Commission take no action, or make no recommendation, if an agency were to routinely take 1,000 days to give access to documents listed as 'on request' on its disclosure log list? If so, how does that adhere to the objects of the FOI Act?

Yours sincerely,

Julie

Carly Warren, Office of the Australian Information Commissioner

Dear Julie

Thank you for your email.

As discussed in the Disclosure Log Desktop Review Report, it is the Information Commissioner's view that consistent with better practice, agencies and ministers should seek to make all documents released in response to FOI requests available for download from the disclosure log or another website, subject to applicable exceptions (see paragraph 3.2.3 https://www.oaic.gov.au/freedom-of-infor...).

If you have concerns about a particular agency's disclosure log practices, you can make a complaint. As discussed in the FOI Guidelines at [14.71]:

The Commissioner's function of investigating complaints about agency FOI administration extends to complaints about an agency's disclosure log (s 70). The Commissioner can also undertake an own motion investigation into an agency's FOI actions (s 69(2)). These complaint and investigation functions do not extend to the actions of ministers. Nor can disclosure log actions of an agency or minister be the subject of a review by the Information Commissioner under Part VII of the Act.

For further information on making a complaint, please see https://www.oaic.gov.au/freedom-of-infor...

Kind regards
Carly

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Dear Carly Warren,

Has the Information Commissioner ever received a complaint, or conducted an own motion investigation, about any agency's practices in regards to disclosure logs and/or time taken to respond to a request for a disclosure log document?

Yours sincerely,

Julie

Carly Warren, Office of the Australian Information Commissioner

Dear Julie

The Information Commissioner has received complaints regarding agency disclosure log practices in the past. See, for example, the issues, outcomes and recommendations in relation to Services Australia here https://www.oaic.gov.au/__data/assets/pd... (at page 2 - notice on completion date 5 December 2020).

The outcomes and recommendations of FOI complaints investigations are published on our website https://www.oaic.gov.au/freedom-of-infor...

Kind regards
Carly

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