Chapter 2The FOI system
2.1This chapter details how Australia's Freedom of Information (FOI) system has been designed, including its underpinning legislation, the application and appeal processes, and key roles within the system. It also provides an overview of some of the reviews and investigations into the functioning of the FOI system, and legal challenges to its administration. Finally, this chapter discusses the operation of FOI systems in comparable jurisdictions.
The perceived value of the FOI regime
2.2Submitters were invariably supportive of a well-functioning FOI system. Australia's FOI system was seen by submitters to be vital to a healthy and well-functioning democracy, a fundamental aspect of the rule of law, crucial to ensuring government transparency and accountability, and essential to enabling the public to participate in and scrutinise government decision-making.
2.3The former FOI Commissioner, Mr Leo Hardiman PSM KC, described the FOI system as 'an important adjunct to the doctrine of responsible government' that provides 'a check on the integrity and apolitical nature of the [Australian Public Service]'. The Attorney-General's Department (AGD) outlined the role and significance of Australia's FOI system:
A well-functioning FOI system is a key part of Australia's integrity architecture; it promotes government accountability by enhancing the transparency of policy-making, administrative decision-making and service delivery. The right to access government information, subject to appropriate exemptions in the public interest, is now accepted as an essential component of a democratic society. The [Freedom of Information Act 1982] recognises that government-held information is a national resource, managed for public purposes, and as such, access to information should be prompt and at the lowest reasonable cost, unless there is an overriding reason not to disclose it.
2.4The website of the Office of the Australian Information (OAIC) recognises that government-held information is 'a national resource and is managed for public purposes, and that public access to it should be prompt and at the lowest reasonable cost'.
2.5The OAIC also submitted that:
A community that is better informed can participate more effectively in the nation's democratic processes. Consequently, an effective and efficient FOI system is fundamentally in the public interest.
2.6The Law Council of Australia told the committee that the FOI regime was 'critical to the effective operation of the administrative law system and more broadly to the integrity of Australia's democratic institutions'.
2.7A range of submissions received from representatives of the media also emphasised the importance of a robust FOI system for public interest journalism. Crikey claimed that 'the information journalists have revealed using the FOI system has been hugely consequential in informing readers of government decisions'. Country Press Australia (CPA) told the committee that:
Our laws and access to FOI is a fundamental ingredient of good and even great journalism in this country. The use of existing FOI rules has helped uncover some of the biggest and most important stories of our era…The ongoing existence of a free and open press is a fundamental component of any democracy'.
2.8Civil society groups also emphasised the value of the FOI regime for their work, arguing that information obtained under FOI enables their clients to engage more effectively with government processes.
Legislation underpinning the FOI system
Freedom of Information Act 1982
2.9The Freedom of Information Act 1982 (FOI Act) underpins Australia's FOI system. At the time it was introduced, the FOI Act was the first such legislation brought forward by a Westminster-style government. Inaugural InformationCommissioner, Professor John McMillan AO, described the legislation as 'a radical milestone in Australian public law'.
2.10The FOI Act is supplemented by the Freedom of Information (Charges) Regulations 1982—which provides that the agency that holds requested information (decision-making agency), may at its discretion, impose a charge for processing an FOI request or providing access to a document released under FOI—and the Freedom of Information (Miscellaneous provisions) Regulations 1982.
2.11The FOI Act was designed to ensure that government departments and authorities facilitate and promote the disclosure of the information they hold, except where there are 'special reasons' not to. The FOI Act acknowledges the need to balance these two objectives, and recognises that a government cannot function with an absolute right of access. The FOI Act therefore outlines circumstances where confidentiality over certain types of information should be maintained. The OAIC website lists three categories of exemption: exemptions, conditional exemptions, and documents that are accessible to the public under other arrangements for a fee. Each is detailed below.
2.12First, certain documents may be exempt under the FOI Act, including documents:
that affect national security, defence, or international relations;
of the Federal Cabinet;
that affect law enforcement and public safety;
where the secrecy rules of a law applies;
where legal professional privilege applies;
that contain material collected in confidence;
whose disclosure would be in contempt of parliament or in contempt of court;
disclosing trade secrets or commercially valuable information; and
electoral rolls and related documents.
2.13Second, some documents may be conditionally exempt under the FOI Act, including a document that has:
personal information that would be unreasonable to disclose;
information about certain operations of the agency (such as operations, audits, examinations, or employee management);
information about the deliberative processes relating to an agency or minister's functions;
information that could damage federal and state government relations;
information that may damage the Australian economy; and
information about the Australian government's financial or property interests.
2.14Third, documents that are accessible to the public under other arrangements for a fee are also exempt from the FOI Act. See Chapter 4 for a discussion of the merits of fees, charges, and costs for FOI applications.
2.15AGD submitted that FOI exemptions 'were intended to protect a specific "interest" which could be justified as outweighing the public interest of providing access to the particular information'. An agency that holds requested information may nevertheless decide to disclose a document, even if the document may be exempt or conditionally exempt. Agencies are therefore required to weigh up factors that favour access and those that favour non-disclosure. Factors that favour disclosure include whether the provision of access would promote the aims of the FOI Act and would promote the participation of the public in government decision-making. An agency or minister cannot take into account the potential for disclosure to result in embarrassment or loss of confidence in government, misunderstandings, confusion or unnecessary debate, or the seniority of the document's author.
2.16The OAIC encourages the use of proactive publication and administrative access (see Box 2.1, below), through which agencies and ministers elect to release information as a matter of course, rather than waiting for an FOI request. The OAIC also oversees the Information Publication Scheme, which requires publication of specific categories of information by Australian government agencies, reflecting the pro-disclosure goals of the FOI Act.
2.17A decision-making agency may also refuse access for 'practical refusal reasons' if an FOI request does not sufficiently identify the requested documents or if the work involved in processing the request would substantially and unreasonably divert the resources or interfere with the performance of the decision-making agency.
2.18The Attorney-General's Department submitted that the FOI system, when designed more than 40 years ago, was intended 'to serve as one feature, within a broader landscape of integrity related measures, to ensure government transparency and accountability'.
Box 2.1 Proactive disclosure The proactive disclosure of government-held information (or proactive publication, administrative access, administrative release, or disclosure by design) is the publication of documents of public interest without requiring an FOI request or an application under the Privacy Act 1988 (see Chapter 3). Proactive disclosures conform with the principles underpinning the FOIAct—particularly government transparency and accountability—and consider formal information access requests to be a last resort. The pre‑emptive release of documents may also mitigate requests for government‑held information, thereby reducing the administrative costs for decision-making agencies. In September 2021, all Australian information commissioners and ombudsmen developed a statement of principles in support of proactive disclosure of government-held information. |
Australian Information Commissioner Act 2010
2.19The Australian Information Commissioner Act 2010 (AIC Act) established the independent statutory body of the OAIC. The powers and structure of the OAIC are outlined below.
2.20As discussed in Chapter 1, in 2014, the then Commonwealth government announced its intention to disband the OAIC and return largely to the FOI regime as it was prior to the AIC Act in 2010. Consequently, the OAIC began to transfer certain FOI functions and resources to other agencies, closing its Canberra office. However, the efficiency and budget saving measures were not passed by the Senate, and in the 2016–17 budget, the OAIC received funding to resume its FOI functions.
2.21See Chapter 4 for a discussion of proposed legislative changes related to the FOI system.
Privacy Legislation Amendment (Enforcement and Other Measures) Act 2022
2.22The Privacy Legislation Amendment (Enforcement and Other Measures) Act 2022 enables the Information Commissioner to delegate their powers under section55K of the FOI Act to an OAIC member of staff employed at the Senior Executive Service level, with effect from the end of 2022.
Key roles within the FOI system
2.23The FOI system requires a multi-faceted approach involving a range of Commonwealth agencies and departments. Key roles within the FOI system are outlined in this section.
Commonwealth departments and agencies
2.24Commonwealth departments, agencies, and ministers are first-level decision‑makers with respect to FOI requests for the information they hold. However, some agencies are exempt from the FOI Act.
2.25The Department of Home Affairs (Home Affairs)—responsible for 43 per cent of all Commonwealth FOI requests in 2021–22, see Table 2.1, below—submitted that funding for its FOI program was allocated from the department's base budget and not linked to fluctuating demand. Home Affairs noted that its FOI program therefore 'competes' with its other core programs, such as law enforcement, emergency management, and border-related programs.
2.26The Australian Financial Security Authority (AFSA) submitted that for small‑to‑medium-sized agencies, even straightforward FOI requests can constitute significant demands on their resources, with more complex and voluminous applications presenting a 'further resourcing strain'. AFSA also noted that '[s]mall and medium agencies often have limited capacity to allocate suitable resources to deal with an unexpected surge in FOI requests'.
Table 2.1Top agencies by number of FOI requests received, 2021–22
| | |
Department of Home Affairs | 14644 | 43 |
Services Australia | 4627 | 14 |
National Disability Insurance Agency | 1884 | 6 |
Department of Veterans' Affairs | 1785 | 5 |
Administrative Appeals Tribunal | 1505 | 4 |
Department of Health | 1254 | 4 |
Source: OAIC, Annual Report 2021–22, 2022, p. 137.
Attorney-General's Department
2.27AGD has a dual role with respect to FOI. AGD responds to FOI requests made directly to the department, as well as supporting the Attorney-General to administer the FOI Act, including by providing policy and legal advice on the operation of the FOI Act, and working with the OAIC as a portfolio agency.
The Office of the Australian Information Commissioner
2.28The OAIC is an independent statutory agency and the national regulator for privacy and Freedom of Information. The OAIC is headed by the Australian Information Commissioner, who is appointed by the Governor-General, and operates under a three-commissioner structure: the Information Commissioner, appointed by the Governor-General; an FOI Commissioner, who is a statutory office holder responsible for the effective management of the OAIC's FOI functions; and a Privacy Commissioner. The OAIC is supported by staff engaged under the Public Service Act 1999.
2.29In relation to FOI requests, the OAIC has the power to:
review FOI decisions made by agencies and ministers;
investigate complaints about the handling of FOI applications;
provide advice and assistance in relation to the FOI Act, and issue FOI guidance;
oversee extension of time applications in relation to FOI requests;
raise awareness and knowledge of the FOI system, including rights and obligations under the FOI Act;
compile FOI data and assess trends;
report and make recommendations to the minister in relation to legislative changes to the FOI Act; and
monitor, investigate, and report on compliance.
2.30As at May 2023, the FOI area of the OAIC consisted of 22.4 staff, in addition to one Senior Executive Service Band 1 officer and the FOI Commissioner. In answers to questions on notice provided by the OAIC in 10 October 2023, the Information Commissioner advised that an 'above budget allocation' of 9 staff had been allocated for the 2023-24 year. See Chapter 4 for a discussion on the adequacy of resourcing for the OAIC.
2.31The Australia Institute emphasised the importance of a properly-functioning OAIC, submitting that it would deter public servants and the government from 'unnecessarily refusing, delaying and avoiding FOI requests'.
2.32In 2021–22, the OAIC received 1995 Information Commissioner reviews (ICreviews) and finalised 1392 IC reviews (70percent). In 2022–23, the OAIC received 1647 IC reviews and finalised 1519 ICreviews. Of these, 476 (31percent) were finalised without a formal decision; 879 were withdrawn by the applicant (58 per cent); two were finalised by agreement of the parties; 94 (sixper cent) were reviewed by the Administrative Appeals Tribunal (AAT); and 68 (four per cent) were decided by the Information Commissioner. Of the 68 reviews decided by the Information Commissioner, nine (13 per cent) varied the original decision; 11 (16 per cent) affirmed the original decision; and 48 (71per cent) set aside the original decision.
2.33As at 22 May 2023, the OAIC had 2060 active cases.
2.34For further details on the IC review caseload and backlog, and changes to processing of IC reviews over time, see Chapter 3.
The Administrative Appeals Tribunal
2.35As with the Attorney-General's Department (discussed above), the AAT has a dual role in the FOI system. The AAT is both a first-level decision-maker with respect to FOI applications made directly to the AAT, whilst also being the second-level external merits reviewer under the FOI Act. The AAT submitted that it is an 'integral part of the current FOI framework which enables applicants and other affected parties to seek independent review of [FOI decisions]'.
2.36Under the FOI Act, an application may be made to the AAT to review the following:
a decision by the Information Commissioner affirming, varying, or setting aside a reviewable decision;
a decision by the Information Commissioner that a review should be conducted by the AAT rather thanthe OAIC; and
a decision by the Information Commissioner to make a vexatious applicant declaration.
2.37The Information Commissioner may decide not to undertake or not to continue an IC review on the basis that the interests of the administration of the FOI Act make it desirable that the decision be considered by the AAT instead.
2.38Applications to the AAT must be in writing, stating the reasons for the application, must be lodged within 28 days of the Information Commissioner's notice of the decision in question, and must include the application fee of $1011, where due.
2.39The agency or minister who made the reviewable decision must provide the AAT with justification for the decision and all documents relevant to the review, other than those that are claimed to be exempt, within 28 days of receiving a notice of an application for review. The AAT has broad discretion regarding the conduct of its proceedings, but must ensure that all parties are afforded procedural fairness.
2.40The AAT laid out the following process for conducting a merits review of an FOI application or review:
Merits review of an administrative decision involves considering afresh the facts, law and policy relating to that decision. The Administrative Appeals Tribunal (AAT) decides what is the correct or preferable decision based on the material before it, including any new or additional evidence that was not before earlier decision-makers.
Applications may be finalised in different ways, including to affirm, vary or set aside the decision under review by the AAT.
2.41A decision of the AAT may be appealed in the Federal Court of Australia on a question of law only.
2.42The AAT's caseload of FOI appeals is detailed in Table 2.2, below.
Table 2.2Summary of AAT FOI Division caseload
| | | |
2017–18 | 38 | 47 | 124% |
2018–19 | 33 | 25 | 76% |
2019–20 | 69 | 30 | 43% |
2020–21 | 74 | 46 | 62% |
2021–22 | 57 | 73 | 128% |
2022–23 | 54 | 69 | 128% |
Source: Administrative Appeals Tribunal caseload data, tabled by the Administrative Appeals Tribunal at a public hearing on 28 August 2023.
2.43Of the 54 applications lodged with the AAT in 2022–23, 45 (83 per cent) related to applications in which the Information Commissioner had declined to undertake a review or to not continue a review under subsection 54W(b) and seven (13 per cent) were for a review of an IC decision. Ms Alison Nesbitt, Executive Director Review Support at the AAT, told the committee that applications for which the Information Commissioner had declined to undertake a review had increased in recent years both in absolute terms and as a proportion of the AAT caseload. Ms Nesbitt noted that in 2018, only four lodgements involved situations in which the Information Commissioner had declined to conduct a review.
2.44The AAT submitted that its use of alternative dispute resolution—as opposed to formal hearings—was an important method of ensuring its review process was economical, informal, and timely.
2.45The government has announced that it intends to abolish the AAT and replace it with a new body called the Administrative Review Tribunal. Remaining cases before the AAT will transition to the new body, once established.
FOI application and appeal processes
2.46Under the FOI Act, individuals or organisations (FOI applicants) may request access to a document directly from the Commonwealth department, agency, or minister that holds the information. The decision-making agency may grant the request (an access grant) or may refuse access to the document (an access refusal), in accordance with the FOI Act.
2.47In the case of an access grant, a decision-making agency must make the information available for download; publish a link to download the information; or publish details of how the information may be obtained. Some departments make documents available via a disclosure log, whilst others only provide an email address from which to request a copy of the document (see Chapter 4 for a discussion of the merits of these provisions).
2.48In the case of an access refusal, an FOI applicant may apply either for an internal review of the decision by the decision-making agency (providing the original decision was not made by a minister or the principal officer of an agency) or a review of the decision by the Information Commissioner (IC review). If an internal review upholds the original decision, an FOI applicant may still apply for an IC review.
2.49The OAIC noted that it may use a range of techniques to conduct IC reviews to ensure the most effective and efficient outcomes, including the use of alternative dispute resolution.
2.50In the case of an access grant decision, an affected third party may apply for an internal review or an IC review of the decision.
2.51An IC review can affirm, vary, or set aside a decision by the decision-making agency. The Information Commissioner may also decide not to undertake a review on the basis that it is desirable that the AAT undertakes the review, or the Information Commissioner may declare a person a 'vexatious applicant'—that is, the actions of the FOI applicant are deemed to constitute an abuse of process.
2.52An FOI applicant may apply to the AAT for a review of a decision by the Information Commissioner, other than a decision not to undertake or continue an IC review. A review of the AAT decision can be made by the Federal Court only on a matter of law.
2.53This process is outlined in the flowchart in Figure 2.3, below.
Figure 2.3FOI key principles flowchart
Source: Office of the Australian Information Commissioner's, answer to question on notice (received 28 July 2023).
2.54The OAIC submitted that the merits review process (an IC review) intends to determine the correct decision in the circumstances, as distinct from simply reviewing the reasons given by an agency or minister in its original decision. As such, the OAIC is required to consider material that has arisen since the decision of the decision-making agency was made, as well as any impact that the passage of time may have when determining whether disclosure would be in the public interest.
2.55The OAIC detailed its approach to IC reviews, as follows:
In conducting an IC review, the Commissioner must balance timely decision-making with the importance of ensuring an accurate and appropriate outcome for each matter. This process requires a careful assessment of the documents subject to review, the submissions put forward by the applicant and agency and any other information that may be appropriate in the circumstances. It also involves the preparation of clear and cogent written reasons to inform and assist both the parties to the review, as well as the AAT in the event that a party seeks review of the Commissioner's decision.
2.56The OAIC also emphasised with respect to IC reviews that 'accuracy is critical, given the potential consequences of an incorrect decision'.
2.57A document that may be subject to the FOI Act is defined as information or a document that exists at the time of the FOI request to which a minister or an officer of an agency has the power to publish or grant access. It may include, but is not limited to, a piece of paper or other material on which there is writing, maps, drawings, photographs, sound and video recordings, messages on mobile devices, digital files, and other records of information.
2.58Whilst official documents of a minister are subject to the FOI Act, under subsection 4(1), access to these documents under FOI may be refused if there is a change of minister. The NSW Council for Civil Liberties submitted that '[t]he Information Commissioner has, in three instances, construed section 4(1) narrowly to mean that the FOI Act does not apply to documents of former ministers'.
2.59The website of the OAIC similarly noted:
The FOI Act gives you a right to access official documents in the possession of a minister. If a new minister is appointed, some documents will be transferred from the former minister to the new one. However, not all documents will be transferred to the new minister. Some documents may be transferred to the National Archives of Australia, while others may be destroyed.
If the new minister does not hold the documents you asked for, your FOI request can be refused because the documents are no longer in the possession of a minister, and they are therefore not official documents of a minister.
2.60See Chapter 4 for a discussion on accessing the documents of a minister under the FOI system.
Statutory timeframes
2.61The following statutory timeframes apply under the FOI Act:
as soon as practicable and within 14 days, an agency or minister must acknowledge receipt of an FOI request;
as soon as practicable and no later than 30 days after receiving a request, an agency or minister must take all reasonable steps to enable the applicant to be notified of a decision in relation to the FOI request;
extensions may be requested by the decision-making agency with the agreement of the applicant or on approval of the Information Commissioner under certain circumstances, such as to enable third-party consultations or for complex or voluminous requests;
within 30 days of an FOI applicant being notified of an agency's decision, the FOI applicant may request an internal review;
within 60 days of an FOI applicant being notified of an access refusal decision, the FOI applicant may apply for an IC review;and
within 28 days of an FOI applicant being notified of a decision by the Information Commissioner, the FOI applicant may apply for review to the AAT.
2.62Initial decisions that are not made by the decision-making agency within the statutory timeframe are deemed to have been refused (a 'deemed refusal'). The applicant may apply for internal review or an IC review. Deemed refusals under appeal may still be finalised by the decision-making agency and would be reported as a finalised IC review. See Chapter 3 for details on FOI delays and processing timeframes.
Requests for personal information
2.63FOI requests may involve requests for personal information. For the purposes of the FOI Act, personal information has the same meaning as in the PrivacyAct1988 (Privacy Act):
…information or an opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not, and whether the information or opinion is recorded in a material form or not.
2.64The FOI Act does not specifically distinguish between requests for personal information and non-personal requests. Nevertheless, whether an FOI request concerns personal information or not may impact how it is processed and may influence decisions regarding its release. As such, decision-making agencies often differentiate between personal and non-personal FOI requests. Some decision-making agencies therefore disaggregate personal and non-personal requests. The OAIC, for example, reported that, of the total number of FOI requests (as distinct from IC reviews) it received in 2022–23, 56 per cent were for personal information. Home Affairs submitted that, in 2021–22, 87 per cent of its FOI requests were for personal information. The proportion of requests for personal information as a proportion of all FOI requests fell from 87 per cent in 2015–16 to 74 per cent in 2021–22.
2.65Whilst requests for personal information may be processed under the FOI Act, decision-making may consider such requests under the Privacy Act. ThePrivacyAct governs how Australian government agencies handle personal information and provides a general right for individuals to access personal information held by government agencies under Australian Privacy Principle 12 (APP 12). OAICGuidelines state that APP 12 operates alongside the right of access in the FOI Act.
2.66Opportunities and challenges associated with this alternative pathway for handling personal information requests are discussed further in Chapter 3.
Fees, charges, and costs
2.67Under the FOI Act, a decision-making agency has a discretionary power to charge applicants. Charges for users of the FOI system are regulated by the Freedom of Information (Charges) Regulations 2019, under which charges do not apply for documents containing personal information or if applicants are notified of a decision outside the statutory timeframe. Decision-making agencies may impose a charge in relation to the request for access to a document, or the provision of the document, at a standard amount or rate provided for in the regulations. If the actual costs of providing the document is lower than estimated, the applicant may receive a waiver or reduction in the amount charged.
2.68The Australian Conservation Foundation described the process for determining fees as follows:
When a request is made, the responding agency is required to estimate the amount of work and fees to be charged (if any), consider whether these should be waived and, if not, notify the applicant of the estimated fee. The estimated fee can be reduced or waived once the work has been completed based on actual time taken. The applicant can choose to withdraw a request once they have received notice of the estimated charges.
2.69The OAIC noted in 2021–22 that decision-making agencies collected only 28percent of the charges notified to applications.
2.70Fees do not apply for internal reviews or for IC reviews.
2.71Most applications to the AAT incur a $1011 fee unless the applicant holds a card certifying entitlement to Commonwealth concessions or in cases in which payment of the fee would cause financial hardship to the applicant. Successful applicants are refunded the application fee, minus $100.
Reviews of the FOI system
2.72The FOI system has been reviewed regularly since its introduction. This section outlines some of the recent reviews of the system.
Moss Report [2007]
2.73In 2007, Ms Irene Moss AO was commissioned by Australia's Right to Know coalition (ARTK), a coalition of media organisations) to investigate limitations on, and threats to, free speech and press freedom that have an impact on media access to information (Moss Report). The Moss Report identified failings within the FOI system related to delays, high costs, discrepancies between federal and state systems, legal technicalities, and a tendency of FOI processes to favour refusal of access over disclosure.
Hawke Review [2013]
2.74In 2013, Mr Allan Hawke AC conducted a review (Hawke Review) into the FOIAct, the AIC Act, and the extent to which those Acts continued to prove effective in granting access to government information. The Hawke Review made 40 recommendations for improving the FOI system, including that a comprehensive review of the FOI Act be undertaken.
2.75The Hawke Review found that:
reforms made in 2009 and 2010 were 'operating as intended' and 'generally well-received';
actioning FOI requests required significant resources from government agencies and departments;
legislative changes were required to reduce the complexity of the FOI system; and
exemptions for classes of documents and agencies were warranted.
2.76Professor McMillan claimed that the OAIC submission to the HawkeReview proposed that proactive disclosures 'could be taken further', for example through the publication of ministerial diaries or the imposition (through legislative reform) of time limits on the operation of some exemptions. ProfessorMcMillan claimed that such an approach—which he submitted has been adopted in some jurisdictions, such as New Zealand—'would potentially limit the FOI Commissioner's caseload'.
Commissioner-initiated investigation into the Department of Home Affairs [2020]
2.77In 2020, the Information Commissioner, Ms Angelene Falk, initiated an investigation into Home Affairs' compliance with the department's statutory processing timeframes related to non-personal information under subsection 69(2) of the FOI Act. The investigation report found shortfalls in the department's governance, systems of accountability, policies, and processes. The report concluded that Home Affairs did not have adequate governance and systems of accountability in place to ensure compliance. The report further found that greater support and leadership related to the department's FOI functions was warranted and that its policies and procedures were inadequate in certain respects.
2.78The Department of Home Affairs submitted that it had improved its FOI policy, procedures, and systems since the OAIC Home Affairs review.
2.79The Public Interest Advocacy Centre noted with respect to the outcomes of the review, '[w]hile issues with Home Affairs persist, the OAIC's scrutiny and suggested reforms were a welcome step toward prioritising transparency'.
2.80A follow-up review was subsequently conducted by the Information Commissioner. See Chapter 3 for a discussion of reforms in relation to the handling of FOI applications by Home Affairs and other departments.
OAIC strategic assessment
2.81The OAIC received $1 million in funding to conduct a strategic assessment under the 2023–24 federal budget. Ms Falk described the 2023 strategic assessment as aiming to ensure 'the OAIC is appropriately positioned to meet the challenges of the future'. AGD submitted that the assessment would help government determine appropriate resourcing (for both FOI and privacy functions of the OAIC) and identify areas to improve the functioning of the OAIC across both its privacy and FOI functions. AGD told the committee that the assessment would be overseen by a steering group of the OAIC, Department of Finance, and AGD, and would aim to reflect the relevant policy, operational, cultural ,and financial issues facing the OAIC. The committee understands that the strategic assessment was already underway at the time of writing and is due to be presented to government in early 2024.
Patrick v Australian Information Commissioner
2.82In 2021, then-Senator Rex Patrick initiated legal proceedings against the OAIC, alleging unreasonable delays in dealing with FOI reviews. Mr Patrick detailed a series of delayed FOI appeals—some of which had been lodged more than fouryears prior to his legal action.
2.83During proceedings, the OAIC revealed that around 80 per cent of the 325ICreviews lodged with the OAIC in 2020 had not been allocated to a reviewer.
2.84The presiding judge, Justice Michael Wheelahan, found the delays within the OAIC were 'striking', but ultimately ruled against Mr Patrick, deciding that the delays were 'not legally unreasonable' given the OAIC's lack of resources. Justice Wheelahan further concluded that it was the responsibility of the Parliament to legislate to ensure that sufficient funding was appropriate for the OAIC to discharge its functions.
2.85The cost of the legal proceedings to the Commonwealth was reported to be $780000.
OAIC reforms
2.86Facing increasing numbers of IC review applications (see Chapter 3), the OAIC has since 2018 sought to 'maximise operational efficiencies' by undertaking reforms. The OAIC submitted that it has undertaken a number of reviews and restructures, and has continually sought to implement refinements and improvements in its processing of FOI matters.
2.87In an affidavit given by OAIC Deputy Commissioner, Ms Elizabeth Hampton, in connection with Patrick v Australian Information Commissioner, MsHampton outlined changes to the IC review process, including handling of deemed decisions, increased automation of smart forms and templates, adjustments to clearance processes, streamlined case management reporting systems, and updated internal process documentation. Additionally, MsHampton stated that the OAIC had encouraged agencies and ministers to proactively publish information of public interest to reduce the reliance on FOIprocesses.
2.88The OAIC undertook a restructure of the FOI branch in February 2023 to enable IC reviews to be finalised more quickly. Prior to the February 2023 restructure, the FOI branch comprised four teams: Investigations and Compliance; Intake and Early Resolution; Reviews; and Significant and Systemic Review. The February 2023 restructure put in place the following four teams: Monitoring, Guidance, and Engagement (responsible for providing guidance and advice); Intake and Early Resolution (which registers and triages IC review applications); Reviews and Investigations (responsible for managing IC reviews); and Significant Decisions (which drafts decisions for consideration by the FOI Commissioner or Information Commissioner, and determines applications for vexatious applicant declarations).
2.89A list of potential legislative changes developed by the OIAC intended to 'improve IC review procedures/processes' is available on the committee's website and at Appendix 3.
Jurisdictional comparisons
2.90All Australian states and territories, as well as many other countries around the world, have implemented equivalent legislation to the FOI Act. Many jurisdictions use the term 'freedom of information', whilst others refer to 'access to information' or a 'right to information' within legislation.
2.91Under the Freedom of Information Act 1991 (SA) (SA FOI Act) requests may be made for access to documents held by South Australian government agencies, ministers, and local government councils. The SA FOI Act provides two avenues for external review of FOI decisions made by government, either through the Ombudsman SA, or the South Australian Civil and Administrative Tribunal (SACAT). Determinations made by the Ombudsman SA may be further reviewed by the SACAT if the applicant is dissatisfied with the outcome. Decisions made by the SACAT are final. Whilst there is no statutorily mandated timeframe for review, the Ombudsman SA has a stated aim to complete their determinations within four months of receipt of a request for external review.
2.92Mr Patrick submitted that the South Australian Ombudsman procedure for review of FOI decisions is more effective than the OAIC review process. MrPatrick described the efficiency of the South Australian Ombudsman model:
[The Ombudsman] makes the provisional decision, gives people a couple of weeks to respond to those. Both parties, the applicant and the respondent agency, get to make a submission in relation to the provisional decision, and then there's a final decision. He is quite brutal.
2.93Mr Patrick added that the government may appeal a decision by the SouthAustralian Ombudsman on a point of law only. But if they do so, they must pay the legal costs for the applicant, which serves as a deterrent for 'not advancing improper claims', he stated.
2.94The Australia Institute also pointed to the efficiency of the South Australian Ombudsman in its submission, noting that in 2021–22, the average time taken for the OAIC to complete a review was 192 days, whereas the average time taken for the Ombudsman SA to conduct an FOI review was 86 days.
2.95The Australia Institute considered the relative efficacy of the South Australian FOI system may be the result of a number of factors, including: the option for applicants to go straight to administrative review through SACAT, the Ombudsman SA's stated aim to complete determinations within four months, and the use of an ombudsman rather than a commissioner.
2.96The Freedom of Information Act 1982 (Vic) provides a mechanism for requesting information from Victorian government agencies or ministers. Where an agency or minister refuses or defers access in full or in part to a document, applicants may apply to the Office of the Victorian Information Commissioner (OVIC) for review of the decision. The Victorian FOI Act requires the InformationCommissioner to complete a review within 30 days of receiving an application, or by an extended period as agreed with the applicant. If the InformationCommissioner has not provided a decision within 30 days, or the applicant is not satisfied with the Commissioner's decision, they may apply to the Victorian Civil and Administrative Tribunal for a review.
2.97The Public Interest Journalism Initiative and Centre for Advancing Journalism, University of Melbourne, submitted that delays in FOI application and review processes were prevalent in the Victorian system, notwithstanding the existence of a statutory time limit on FOI review. In their 2021–22 Annual Report, the OVIC reported completion of 60 per cent of reviews within the statutory timeframe or as agreed with the applicant, with the average time taken to complete a review of 110 days.
2.98The Western Australian Freedom of Information Act 1992 (WA) operates similarly to the Victorian regime. External reviews of FOI decisions may be sought through the Information Commissioner of WA, with the Commissioner required to review and provide a decision within 30 days unless they consider it impracticable to do so. Decisions made by the Commissioner are binding, subject to an appeal to the Supreme Court of WA on a question of law.
2.99The Office of the Information Commissioner of WA reported that 48 per cent of reviews were finalised in less than six months. A third (33.8 per cent) took between six and 12 months to finalise, and 18.2 per cent took more than 12 months to finalise.
2.100In New South Wales, either the NSW Information Commissioner or the NSW Civil and Administrative Tribunal (NCAT) are able to undertake external reviews of decisions made under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). If an applicant is unhappy with a determination made by the NSW Information Commissioner, they may seek further review through NCAT.
2.101The NSW Information Commissioner is statutorily required to complete reviews of decisions within 40 working days after receiving all information they consider necessary to complete the review. In its 2021–2022 Annual Report, the Information and Privacy Commission NSW reported that 100 per cent of reviews received by the Information Commissioner were finalised within the statutory timeframe.
2.102In its submission, the Centre for Public Integrity noted the disciplinary sanctions present in the GIPA Act, available to be used where FOI officers make decision contrary to the Act, may be of benefit to the efficient operation of the GIPA regime.
2.103Similar to the South Australian framework, in Tasmania and the Australian Capital Territory (ACT) applications for review of agency decisions are made to the state or territory ombudsman. The ACT regime has an option for further review of the Ombudsman's decision through the ACT Civil and Administrative Tribunal. Neither jurisdiction statutorily mandates a timeframe for review by the Ombudsman.
2.104In Queensland, the Right to Information Act 2009 (QLD) provides that applications for external reviews of the agency decisions may be made to the Right to Information Commissioner. Appeals of decisions made by the Commissioner may only be made to the Queensland Civil and Administrative Tribunal on a question of law. The Queensland frameworks does not have a statutory timeframe for external review. The Office of the Information Commissioner Queensland states that formal reviews of decisions may take up to one year to finalise.
2.105In the Northern Territory (NT), the Information Act 2002 (NT) allows for decisions to be reviewed by either the Information Commissioner NT or the NTOmbudsman, depending on the content of the complaint. Decisions may also be subsequently referred to the NT Civil and Administrative Tribunal. Whilst there is no mandated statutory timeframe within which reviews must be completed, the NT framework requires the Information Commissioner NT to decide whether to accept or reject complaints within 90 days.
2.106The United Kingdom FOI framework operates similarly to the AustralianCommonwealth. The Freedom of Information Act 2000 (UK) provides that FOI decisions made by public bodies can be appealed to the InformationCommissioner's Office (ICO), for review by the Information Commissioner. If an applicant is unhappy with the decision of the Information Commissioner, they have the right to appeal to the First Tier Tribunal (Information Rights). The ICO reported that in 2022–23, two-thirds (64percent) of FOI cases were finalised in 180 days or less, 27 per cent of cases took between 181–365 days to finalise, and nine per cent took more than 366 days to finalise.
2.107The Scottish Freedom of Information (Scotland) Act 2002 enables the Scottish Information Commissioner to review FOI decisions of public authorities. The Commissioner is statutorily required to reach a decision before the expiry of four months after receiving an application for review, or before the expiry of such other period as is reasonable in the circumstances. Decisions of the Information Commissioner are legally binding, however can be appealed to the Court of Session on a point of law. In its 2021–22 Annual Report, the Scottish Information Commission reported closing half (52 per cent) of appeals for review within the statutory timeframe of four months or less.
2.108In Ireland, the Freedom of Information Act 2014 (Ireland) provides that decisions made by public bodies with respect to requests for information can be externally reviewed by the Office of the Information Commissioner. The InformationCommissioner does not have a mandatory timeframe for review of decisions. Australia's Right to Know submitted that the power of the Irish InformationCommissioner to make binding determinations, with appeals to the High Court only able to be brought on a point of law, appears to assist in timely processing of appeals.
2.109In New Zealand, decisions made under the Official Information Act 1982 (NZ) are reviewable by the Office of the Ombudsman. The Ombudsman is not statutorily required to complete reviews within a set timeframe. Professor John McMillan AO, noting New Zealand's practice of publishing Cabinet submissions and decisions after a short period, submitted that proactive disclosure for documents of particular interest to the public would potentially limit the FOI Commissioner's caseload (see also Chapter 4).