List of recommendations
Recommendation 1
5.8The committee recommends that an independent investigation be undertaken, reporting to the Secretary of the Attorney-General's Department and not the Office of the Australian Information Commissioner (OAIC), to consider the matters raised by Mr Hardiman in relation to workplace behaviour within the OAIC, the impact on employees (past and present), and appropriate action which needs to be taken.
Recommendation 2
5.21The committee recommends that the Australian government amends the Freedom of Information Act 1982 and the Australian Information Commissioner Act 2010 to provide that:
reviews internal to decision-making agencies be abolished and resources reallocated to primary decision-making;
intermediate reviews are not required to provide procedural fairness or formal reasons for a decision;
a full merits review process is only required at the level of the Administrative Appeals Tribunal (or its replacement); and
FOI applicants may appeal directly to the Administrative Appeals Tribunal (or its replacement) at any time after a primary decision for a full merits review of their claim without having to wait for a decision at the intermediate level.
Recommendation 3
5.24The committee recommends that the Australian government amends the Australian Information Commissioner Act 2010 to separate out the FOI review and regulatory functions from the Office of the Australian Information Commissioner and to relocate the FOI Commissioner to the Office of the Commonwealth Ombudsman.
Recommendation 4
5.25The committee recommends that the Australian government reallocates to the FOI Commissioner, newly located within the Office of the Commonwealth Ombudsman, all resources currently earmarked for the FOI functions of the Office of the Australian Information Commissioner and, going forward, provides the FOI Commissioner with adequate resources to perform its regulatory and review functions in a timely and efficient manner.
Recommendation 5
5.32The committee recommends that the Australian government:
consults with key stakeholders and implements appropriate statutory timeframes for FOI reviews (with the timeline proposed by the GrataFund as detailed in paragraph 3.56 of this report as an indicator), including consideration of provisions for extensions in exceptional circumstances due to the scale and complexity of an Information Commissioner review; and
amends the Freedom of Information Act1982 to impose statutory timeframes for the finalisation of FOI reviews. Statutory timeframes should expressly include the notification of reviews to decision-making agencies.
Recommendation 6
5.34The committee recommends that the Australian government amends subsection 4(1) of the Freedom of Information Act 1982 to ensure that a change in minister does not impede the right to access documents under the FOI system.
Recommendation 7
5.36The committee recommends that the Australian government amends subsection 8D(3) of the Freedom of Information Act 1982 to require that decision-making agencies make directly available for public download, either from the disclosure log or another website, all information that is released through an FOI request, subject to recognised technical constraints and privacy concerns.
Recommendation 8
5.41The committee recommends that the Australian government ensures that formal reporting obligations for both decision-making agencies and review bodies be expanded to ensure information is readily available regarding the timeliness and efficacy of FOI decision making.
Recommendation 9
5.47The committee recommends that the Strategic Assessment of the Office of the Australian Information Commissioner (OAIC) specifically considers:
operational and resourcing requirements needed to rapidly resolve the current backlog of FOI reviews;
the organisational culture of the OAIC, including its leadership, and its approach to the discharge of all its statutory functions;
whether resources can and should be reallocated internally to bolster the FOI functions of the OAIC;
ways to ensure the agency's reporting of FOI applications and reviews is transparent, fulsome, and explicitly accounts for the impact of deemed refusals on finalisation statistics;
the key performance indicators adopted to assess the performance of the FOI function of the OAIC so that there is a clear and transparent reporting of the backlog of substantive Information Commissioner review matters (as opposed to the clearance of less substantive matters, such as the rectification of deemed refusals by the relevant agency which requires minimal review);
measures to support the agency to better adapt to the changing nature and scale of its FOI workload; and
possible legislative changes that would improve the agency's functioning and improve outcomes for FOI applicants.
Further, the assessment should be made public.
Recommendation 10
5.48The committee recommends that the Australian government publishes the Strategic Assessment of the Office of the Australian Information Commissioner.
Recommendation 11
5.51The committee recommends that amendments giving effect to the recommendations contained in this report should be enacted as soon as practical (following a consultation period) and that, within three years of implementing the reforms recommended above, the Australian government conducts and tables in the Parliament a review into the effectiveness of the operation of the FOI regime and proposes any further changes that may be warranted. The review should consider, among other issues:
whether reforms to the FOI regime have resulted in improved outcomes for applicants, in particular, whether the backlog of FOI reviews has been addressed and whether decision-making agencies are meeting statutory timeframes;
the merits of introducing or maintaining fees, costs, and charges for FOI applications and FOI reviews;
the merits of introducing a deemed disclosure regime;
whether decision-making agencies and the Commonwealth's FOI review functions are adequately resourced to meet their statutory responsibilities;
opportunities for increasing the use of proactive disclosures by decision-making agencies;
opportunities for increasing the pathways for individuals and their representatives to access personal information outside the FOI regime;
the merits of introducing a requirement for decision-making agencies to consider pro-actively releasing categories of information that have been subject to repeat successful FOI applications;
whether adequate provisions and guidance are in place to support vexatious applicant declarations;
potential reforms or initiatives to support smaller Commonwealth agencies to meet their FOI obligations; and
how best to ensure that the documents of a minister remain within reach of the FOI Act for a specified period after the relevant minister leaves or changes office.
Recommendation 12
5.54The committee recommends that the Strategic Assessment of the Office of the Australian Information Commissioner considers what additional funding is required to clear the chronic backlog of Information Commissioner review decisions and the funding reasonably required for the operation of the FOI system on an efficient and effective steady state basis.
Recommendation 13
5.58The committee recommends that there be a whole of government campaign to encourage decision-making agencies to explore opportunities to create pathways to release personal information directly to the individuals to which the information pertains without requiring applicants to use the FOI regime.
Recommendation 14
5.59The committee recommends that the Office of the Australian Information Commissioner prioritises efforts to develop guidance and build the capacity of decision-making agencies to strengthen pathways for people accessing personal information outside the FOI regime.
Recommendation 15
5.61The committee recommends that the Office of the Australian Information Commissioner develops streamlined guidance and conducts training for decision-making agencies on applications for vexatious applicant declarations. In addition, if necessary to streamline processes and promote efficiency, consideration should be given to making amendments to the relevant legislation.