Request for summary FOI information

Verity Pane made this Freedom of Information request to Office of the Australian Information Commissioner

The request was successful.

From: Verity Pane

Delivered

Dear Office of the Australian Information Commissioner,

While we await the tabling of the ANAO report ( https://www.anao.gov.au/work/performance... ) on the OAIC's management of FOI, and noting that the information sought may already have been prepared by the OAIC for ANAO as part of their audit report, I would like to request (administratively in the first instance, but should the OAIC choose not to release administratively, under FOI as a fall back) summary information about FOI requests dealt with by the OAIC (since its establishment in November 2010 thru to today).

Under s 17 of the Freedom of Information Act 1982 (Cth), where it appears from the request that the desire of the applicant is for information that is not available in discrete form in written documents of the agency, and the agency could produce a written document containing the information in discrete form from resources ordinary available to it, the agency shall deal with the request as if it were a request for access to a written document so produced and containing that information and, for that purpose, the FOI Act applies as if the agency had such a document in its possession (unless the agency can demonstrate to a reasonable standard that compliance would substantially and unreasonably divert the resources of the agency from its other operations - for which the available evidence would not support such claims).

The OAIC maintains formal indexed record of all FOI requests made to it, and the decisions it makes, and does publicly report summary statistics report, albeit in a very limited fashion (but has a reasonable ability to provide broader details, without undue hardship, especially given it does so internally and as part of reviews like ANAO's).

A check of all Right to Know FOI decisions published by the OAIC and those disclosed in the OAIC's FOI Disclosure Log (which unfortunately don't always include the FOI decision made by the OAIC - just sometimes the documents released) indicates that the OAIC has only made a small number of FOI decisions on requests for access to documents (and information that can reasonably be compiled) that it holds (it has also released information in an ad hoc fashion administratively too, but that is not the subject of this FOI request).

Given public reporting of resource issues at the OAIC in the major news publications (which have been ongoing for a number of years), and public investigations and audits regarding the OAIC's FOI management (including the ANAO report due to be tabled), there is substantive public interest in the OAIC's FOI management, of which some basic reporting on OAIC FOI decisions will be relevant to. I therefore would argue it would be against the public interest to seek charges for this FOI, given this sustained public interest, and the modest number of FOIs involved.

I note previously that the OAIC has released (in full) details of consultations it had with the ATO regarding FOI (and RtK), summary statistics (that had to be compiled) on things such as privacy complaints and IC reviews covering multiple years, partial release of material relating to consultations with the ABS on privacy matters, etc which demonstrate that the OAIC has suffered no adverse outcomes, nor been reasonably diverted from its operational activities, from releasing such operational information publicly (and in those prior FOIs no charges for access were sought to be levied).

The information I seek, administratively if possible, but under s 17 of the Freedom of Information Act 1982 (Cth) if not, is the following:
* By financial year (noting both 2010/11 and 2016/17 will be partial years, given the OAIC didn't come into existence until November 2010, and the 2016/17 financial year is not complete) from 2010/11 through to the YtD 2016/17, the number of FOI applications made to the OAIC [preferrably split by private FOI (that is a FOI that seeks PI) and public FOI (which will be those in the FOI disclosure log and on RtK)
* The number of formal FOI decisions issued by the OAIC, by financial year, including breakdown of
- the number granted in full
- the number refused
- the number released in part
* The number of exemption claims made by the OAIC, by exemption section reference, as part of any FOI decision given (this is easily found by scanning the FOI decision letter/email) - note this is not by document within each FOI decision, just by FOI decision itself [so if one FOI decision includes a s 47C exemption claim on say 20 documents within the schedule of that decision, this still is only counted one for the purpose of this summary statistical collection]

It would also be helpful, if it would not unreasonably burden the OAIC, for any summary information on the number of dedicated FOI staff the OAIC has, and if available, any summary cost figure by financial year the OAIC can attribute exclusively to its FOI decision functions (again, only for the OAIC's handling of FOI requests made to it, not for its regulatory or IC review functions).

If you need any further clarification I would be happy to assist. All information received will go towards improving the accuracy of my paper/project on the OAIC, which will inform future debate. As mentioned, it is likely at least some of the information sought was already put together by the OAIC as part of its cooperation with ANAO, in its review of the OAIC's FOI management.

Yours faithfully,

Verity Pane

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From: Raewyn Harlock
Office of the Australian Information Commissioner


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Our reference: FOIREQ17/00035

 

Dear Ms Pane

Your Freedom of Information request

I refer to your request for access to documents received on 25 May 2017.
You asked that your request be treated administratively if possible, but
under the Freedom of Information Act 1982 if not.  

All Australian government agencies are required to report their FOI
processing statistics each quarter, the Office of the Australian
Information Commissioner (OAIC) included. This data is publicly available
on the data.gov.au website. I have attached a link to the page containing
the FOI statistics (including the OAIC’s FOI statistics) -
[1]https://data.gov.au/dataset/freedom-of-i....

The data reported includes (for each Australian government agency):

1.      The number of valid FOI requests received and finalised each
quarter (separated into ‘personal’ and ‘other’ requests).

2.      Whether access was granted in full or in part, refused,
transferred or withdrawn.

3.      The number of requests practically refused.

4.      The exemptions claimed (numbers – noting that more than one
exemption may be claimed for each requests).

5.      The number of requests processed within the applicable statutory
time.

6.      The number of requests for which charges were notified, the total
charges notified and the total charges collected.

7.      The number of items added to the disclosure log.

8.      Internal review applications and outcomes.

9.      Amendment of personal records – numbers and decisions.

 

Furthermore, each Australian government agency (including the OAIC) is
required, once a year, to provide information about staff resources (the
number of staff who spent at least 75% of their time on FOI or IPS work
and the number who spend less than this), the staff hours spent on FOI
work (and the level at which the work is done) and the non-staff costs
attributable to FOI and IPS.  

It appears that the information you seek is already publicly available on
the data.gov.au website.

Can you please consider the publically available data and let me know by
close of business on Wednesday 31 May 2017 whether you want to withdraw
your request or modify its scope to only include information you cannot
otherwise access?

If you would like to discuss this matter please contact me on (02) 9284
9802 during business hours or by email at [2][email address].

 

Regards

 

Raewyn Harlock | Assistant Director | FOI Dispute Resolution

Office of the Australian Information Commissioner

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

Phone:  +61 2 9284 9802 | Email: [4][email address]

 

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From: Verity Pane

Delivered

Dear Raewyn,

Thank you for that web reference, that was useful (and not just for this information request, but future needs too). While the reportage is a bit dense, and not particularly easy to read, given it's a whole of government return, I have manged to extract and decipher most of the information desired, and put it into a much more user friendly form (given the whole point of RtK is sharing this information so you don't have to reinvent the wheel each time, it might be useful if the OAIC could post the information I collated from this resource, specifically for the OAIC - given only agencies can post files here on RtK, I could forward what I constructed for example).

While the statistical information filtered and collated covers most of my request, there are still some key gaps.

Firstly, the site you referred me to, only goes up to 2015/16, and has no year to date data on 2016/17, which is important to me here.

Secondly, the exemptions claimed data is rolled up in some cases into broad categories, and not reported by discrete and specific exemption. This lacks the necessary detail for my needs.

What I would suggest is that, given some information needed has been satisfied (albeit after a fair bit of work on my part), that I reduce the scope of my request to just cover my remaining needs here (which you can decide to either provide administratively, or failing that, under FOI).

I'd like a breakdown of 2016/17 financial year to date FOI data for the OAIC, as per the Request Numbers and Actions on Request worksheets of your Annual FOI reporting template

And I really require precision over the FOI exemption sections claimed, rather than broad categories in some cases, to make a proper analysis. For example, with respect to the s 47 certain operations of agencies exemption, it is broken down in the Act into four distinct elements, with two very different classes of exemption, and context is lost when it just rolled up to summary descriptors. It therefore is important for transparency to know the exact exemption claimed, particularly when trying to extrapolate on shifts in the FOI landscape.

Noting that for FYs 2011/12 thru to 2015/16 inclusive that the OAIC has made 191 FOI decisions (and that there may be about 20 or 30 FOI decisions made YTD FY2016/17), and not wishing to create undue burden, I suggest we split the difference and compile the specific FOI section exemptions cited in any FOI decision from FY2013/14 thru to and including YTD FY2016/17 (which is roughly 100 FOI decisions to flick through).

Again, this is not a complex count involving looking through document schedules for each instance, but rather just a simple count of any specific exemption section of the FOI Act cited in the FOI Decision letter/email given by the OAIC (I would do this myself if possible, but I only have partial visibility to the FOI decisions made by the OAIC, and no access to those PI FOI decisions).

So, for example, in FOIREQ15/00002, a 30 second scan of the decision letter reveals there was a Law enforcement and public safety - s 37(1) exemption claim, and a Certain operations of agencies - s 47E(d) exemption claim. These would be counted just once, not matter how many times they applied to individual documents within that decision.

Even allowing for another 15 seconds to mark the count, this collation activity would be well under the free processing window for all of the decisions sought to be collated.

Your assistance would be greatly appreciated.

Yours sincerely,

Verity Pane

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From: Raewyn Harlock
Office of the Australian Information Commissioner


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Dear Ms Pane

 

Thank you for your email.

 

I would like to clarify the revised scope of your request. Can you please
respond to the following questions by Thursday 1 June 2017?

 

1.      You requested access to ‘Breakdown of 2016/17 financial year to
date FOI data for the OAIC, as per the Request Numbers and Actions on
Request worksheets of your Annual FOI reporting template.’

 

The Annual FOI reporting template requires production of data relating to
staff resources, staff hours spent on FOI etc. The Quarterly Return
requires production of data on request numbers, exemptions etc. (Here is a
link to the [1]FOIstats Guide. Pages 16-21 show the two reporting
templates and the type of data agencies are required to produce.)

 

Do you agree to this item being revised as follows:

 

A breakdown of 2016/17 financial year to date FOI data for the OAIC, as
required by items 2, 3 and 5 of the OAIC’s FOIstats Quarterly Return. In
responding to item 5 (exemptions claimed), where more than one type of
exemption is identified in a section in the FOI Act, the exemptions
claimed should be listed against the relevant subsection.

 

2.      I understand you are also seeking the specific FOI exemptions (as
outlined above) in all the FOI decisions made by the OAIC for the years
2013/14, 2014/15 and 2015/16 (noting that the specific FOI exemptions for
2016/17 is included in item 1 of your revised request). Can you please
confirm this is correct?

 

Regards

 

Raewyn Harlock | Assistant Director | FOI Dispute Resolution

Office of the Australian Information Commissioner

GPO Box 5218 SYDNEY NSW 2001 | [2]www.oaic.gov.au

Phone:  +61 2 9284 9802 | Email: [3][email address]

 

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From: Verity Pane

Delivered

Dear Raewyn,

That sounds about right Raewyn, the information sought for the 2016/17 Financial Year to date, to be exactly specific is:
The number of FOI Requests On Hand 1 July 2016 (reported by those Predominantly PI, Other, and Total);
The number of Requests received from applicants YTD (reported by those Predominantly PI, Other, and Total);
The number of Requests received on transfer YTD (reported by those Predominantly PI, Other, and Total);
The Total number of requests received YTD (reported by those Predominantly PI, Other, and Total)
The number of Requests finalised YTD (reported by those Predominantly PI, Other, and Total)

and, of those FOI requests on which a decision was made in FY16/17 YTD, the following:
The number Granted in Full YTD (reported by those Predominantly PI, Other, and Total);
The number Granted in Part YTD (reported by those Predominantly PI, Other, and Total);
The number of those were Access was refused YTD (reported by those Predominantly PI, Other, and Total);
The number of those Transferred YTD (reported by those Predominantly PI, Other, and Total);
The number of those Withdrawn YTD (reported by those Predominantly PI, Other, and Total);
The Total number determined YTD

Finally where specific exemption was claimed for any FOI Act exemption or conditional exemption, in any FOI decision of the OAIC, for all FOI decisions from and including FY2013/14, FY2014/15, FY2015/16, and YTD FY2016/17, the count of those exemptions by the relevant financial year (with the count increased just once per per decision, for each specific exemption cited in the decision). [specific exemption means not just the section, but subsection too of the FOI Act, that relates to the exemption claim, where that exemption section differentiates between exemption claims]

Hope that helps.

Also, do you know if the Information Commissioner has ever published any commentary on FOI trends, that might be useful? Would gratefully receive any links/references on that.

Yours sincerely,

Verity Pane

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From: Verity Pane

Delivered

Dear Raewyn,

Also, a small addendum, for the breakdown of exemption claims for FY2013/14, FY2014/15, FY2015/16, and FY 2016/17 YTD, can you also count in a seperate breakout, the number of public interest tests (listed by the respective financial year, or financial year to date) and the number of those tests which held disclosure was not in the public interest, and the number of those tests which held disclosure was in the public interest, for the FOI decisions determined, in the above financial years, and financial year to date.

Thanks.

Yours sincerely,

Verity Pane

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From: Raewyn Harlock
Office of the Australian Information Commissioner


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Dear Ms Pane

 

A breakdown of exemption claims for each of the years covered by your
revised request (above) will show the number of requests for which the
decision-maker considered that disclosure of the documents/information
would be contrary to the public interest. This is because to claim that a
document is conditionally exempt, the decision-maker must be satisfied
that disclosure of the document would be contrary to the public interest.
If the decision-maker was not satisfied that disclosure of the document
was contrary to the public interest, the document would be released and no
exemption claimed.

 

We do not record, and there is no legal requirement to do so, the
instances when a decision maker has been satisfied that a conditional
exemption applies (for example, s 47C), but did not consider that
disclosure would be contrary to the public interest and subsequently
released the document.  

 

Regards

 

 

Raewyn Harlock | Assistant Director | FOI Dispute Resolution

Office of the Australian Information Commissioner

GPO Box 5218 SYDNEY NSW 2001 | [1]www.oaic.gov.au

Phone:  +61 2 9284 9802 | Email: [2][email address]

 

Protecting information rights – advancing information policy

[3]OAIC banner for email sig

 

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From: Verity Pane

Delivered

Dear Raewyn,

It's not really a question of whether the OAIC compiles statistics (or whether by law is required to compile such statistics) about the results of its application of the public interest test in decisions where a conditional exemption is examined, but rather whether "where it appears from the request that the desire of the applicant is for information that is not available in discrete form in written documents of the agency, and the agency could produce a written document containing the information in discrete form from resources ordinary available to it, the agency shall deal with the request as if it were a request for access to a written document so produced and containing that information and, for that purpose, the FOI Act applies as if the agency had such a document in its possession" as per s 17 of the Freedom of Information Act 1982 (Cth) (it is not restrainted from doing this either administratively).

The OAIC keeps record of every FOI determination it has made electronically, and using the search term "public interest test" on those records will quickly identify all FOI determinations where a public interest test was applied. A further simple search of the term "public interest to release" of that record subset would likely quickly lead to the number of FOI determinations where the OAIC felt the public interest test was in favour of disclosure. Or it could just simply note and count this, as it skims the 100 or so FOI determinations to record the specific exemptions count already asked, which is probably the most efficient and effective way, adding no real additional workload. And it requires no special resources or unreasonable burden to do so.

It really seems odd to trifle over, especially since in my scan of the publically available FOI decisions, it doesn't seem like the OAIC has ever made a decision on the public interest test that favours disclosure (so will be likely no work at all), but it is important for transparency and to ensure any analysis and extrapolation is correct (and does not inadvertently misrepresent) the OAIC's history here.

With the Information Commissioner's recent comments on the Anniversary of FOI about the importance of transparency and disclosure, I'm sure that intent was also relevant to the history of the OAIC's FOI decisions.

Yours sincerely,

Verity Pane

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From: Verity Pane

Delivered

Dear Raewyn,

Oh, I see what you are saying Raewyn. If a ADM thinks a conditional exemption applies, as part of their consideration, but in applying the public interest test comes to the view that disclosure is more in the public interest than applying the conditional exemption, then it never gets mentioned is what you are saying. Is that a correct understanding?

If so, I get your point, although dropping any reference in the giving of reasons for any such consideration by an ADM seems regrettable to me, in that the whole point for giving reasons is to give some understanding to the ADM's thinking, which is helpful when developing a body of knowledge/practice, but that's just my opinion. If you could just confirm that understanding is correct, I'd appreciate that.

Yours sincerely,

Verity Pane

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From: Raewyn Harlock
Office of the Australian Information Commissioner


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Yes - your understanding is correct.

 

Also, s 26 of the FOI Act only requires reasons and particulars of
decisions to be given when ‘a decision is made relating to a refusal to
grant access to a document in accordance with a request…’. So if a
decision is made to grant access there is no need to give written reasons.

 

Regards

 

Raewyn Harlock | Assistant Director | FOI Dispute Resolution

Office of the Australian Information Commissioner

GPO Box 5218 SYDNEY NSW 2001 | [1]www.oaic.gov.au

Phone:  +61 2 9284 9802 | Email: [2][email address]

 

Protecting information rights – advancing information policy

[3]OAIC banner for email sig

 

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From: Verity Pane

Delivered

Dear Raewyn,

In that case we can ignore the addendum, and just continue with the scope as outlined.

Yours sincerely,

Verity Pane

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From: Raewyn Harlock
Office of the Australian Information Commissioner


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Attachment FOIREQ17 00035 Pane Decision.pdf
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Attachment FOIREQ17 00035 FOI Stats 2013 14.pdf
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Attachment FOIREQ17 00035 FOI Stats 2014 15.pdf
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Attachment FOIREQ17 00035 FOI Stats 2015 16.pdf
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Attachment FOIREQ17 00035 FOI Stats 2016 17.pdf
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Dear Ms Pane

 

A decision in response to the FOI request you made on 25 May 2017 is
attached. Also attached are the documents you requested.

 

Regards

 

 

Raewyn Harlock | Assistant Director | FOI Dispute Resolution

Office of the Australian Information Commissioner

GPO Box 5218 SYDNEY NSW 2001 | [1]www.oaic.gov.au

Phone:  +61 2 9284 9802 | Email: [2][email address]

 

Protecting information rights – advancing information policy

[3]OAIC banner for email sig

 

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From: Verity Pane

Delivered

Dear Raewyn,

Thank you for your decision, the information provided is quite useful, and will be a beneficial aid to interpretation when the Australian National Audit Office's Administration of the the Freedom of Information Act 1982 (an audit to assess the effectiveness and efficiency of the OAIC and AGD's FOI functions) becomes available next month https://www.anao.gov.au/work/performance...

Thank you for the additional information on further resources too.

Yours sincerely,

Verity Pane

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