Chapter 4Challenges to the administration of the FOI regime and the resignation of the FOI Commissioner
4.1This chapter explores the effectiveness of the administration of the freedom of information (FOI) regime, including the adequacy of resourcing FOI application and review functions, and the merits of imposing fees, costs, and charges on users or decision-making agencies. This chapter also outlines structural and legislative concerns related to the FOI regime, detailing evidence received by the committee on key areas in which legislative reform may be warranted. The chapter concludes with an overview of the circumstances surrounding the resignation of the former FOI Commissioner in March 2023 (see also Chapter 1).
Adequacy of resourcing
4.2The committee received extensive evidence suggesting that the FOI regime was under-resourced. Many submitters and witnesses reported that inadequate resourcing had led to extensive delays within the FOI system, as detailed in Chapter 3. This section outlines evidence related to the adequacy of resources for both decision-making agencies as well as the Office of the Australian Information Commissioner (OAIC).
Adequacy of resourcing within decision-making agencies
4.3The Department of Home Affairs (Home Affairs) submitted that funding for its FOI functions is allocated from the core departmental budget. As such, the Department indicated that FOI funding does not automatically change according to demand (that is, the number of FOI applications received), and the FOI functions effectively 'compete' for funding with the department's other core functions. Home Affairs therefore proposed consideration of alternative funding models, including reviewing the current agency-led funding model for Commonwealth FOI programs; enabling a registration fee to be charged for internal and Information Commissioner (IC) review requests; and introducing a cost recovery mechanisms for personal access requests.
4.4The Law Council of Australia (Law Council) submitted that, given decisions not taken within the statutory timeframe are deemed refusals (see Chapter 3), 'it is critical that agencies have adequate resourcing, governance and systems of accountability in place to ensure compliance with statutory timeframes'.
4.5The Australian Financial Security Authority (AFSA) drew the committee's attention to the particular resourcing difficulties faced by smaller agencies related to scale.
4.6The Centre for Public Integrity described the FOI regime as 'plagued by chronic under-resourcing'. Ms Lauren Gray similarly submitted:
The issue of inadequate resourcing poses a significant challenge to the effective functioning of the FOI system in Australia. Insufficient resources directly impact the ability of government agencies to respond to FOI applications and the timely completion of reviews, further exacerbating the delays and backlog in the system.
4.7Ms Gray pointed to insufficient staffing, outdated technology, and limited training as contributing to delays in processing FOI applications, suggesting that these constraints may also result in agencies adopting a more conservative approach to the release of information: '[w]hen agencies are overwhelmed with a high volume of requests and have limited resources to allocate, they may resort to a conservative approach, releasing only the minimum amount of information required or withholding information altogether'.
4.8The Public Interest Journalism Initiative (PIJI) and Centre for Advancing Journalism (CAJ) submitted that the delay and backlog of FOI applications and reviews suggests that FOI teams are under-resourced, noting the challenges of standardising resourcing across agencies with different volumes and types of applications.
4.9The Public Interest Advocacy Centre (PIAC) called for increased agency funding for FOI functions to meet staffing ratios mandated by the OAIC (that is, a ratio of FOI staff per FOI request received). NSW Council for Civil Liberties also recommended that the OAIC be empowered to set minimum staffing ratios within decision-making agencies.
4.10The Law Council insisted that 'new funding is required' to address shortfalls within the FOI system, proposing that new agency staff be hired and trained for FOI functions within decision-making agencies at a scale that is proportionate to the volume of FOI requests they receive. The Australian Conservation Foundation (ACF) recommended an increased resources for FOI processing, arguing for resourcing to be 'responsive to current FOI [key performance indicators]'. And Australia's Right to Know Coalition (ARTK) recommended that consideration be given to allocating resources to the FOI function within departments on a pro rata basis against the total number of FOI applications that agency receives.
4.11AGD noted that the strategic assessment of the OAIC (see Chapter 2) would consider resourcing and submitted that '[t]he department continues to work with the Information Commissioner and other agencies to understand resourcing requirements'.
Adequacy of resourcing within the OAIC
4.12Funding for the OAIC is provided through an annual appropriation within the Commonwealth Budget. This appropriation is generally discretionary core funding that enables the OAIC to undertake its range of functions across all of its branches. The 2021–22 Commonwealth Budget allocated around $1 million annually for the appointment of an FOI Commissioner and three additional staff. As detailed in Table 4.1, below, the OAIC's budget in 2022–23 was $33million, rising to $47 million in the May 2023 Budget. However, this increase was primarily to fund a privacy review process, and the May 2023 Budget contained no additional funding for the OAIC's FOI core functions. The OAIC's budget is expected to fall to $24 million in the 2025–26 financial year, representing a more-than 25 per cent decrease from the 2022–23 budget.
| |
2022–23 | 33 |
2023–24 | 47 |
2024–25 | 31 |
2025–26 | 24 |
Source: Office of the Australian Information Commissioner, Budget Estimates Hansard, 23 May 2023, p. 125.
4.13In an affidavit given by OAIC Deputy Commissioner Ms Elizabeth Hampton in connection with Patrick v Australian Information Commissioner, Ms Hampton stated that she had undertaken work in October 2019 to estimate the number of additional staff required by the FOI branch of the OAIC to respond to the increased caseload of Information Commissioner reviews (IC reviews). On the assumption that the OAIC would receive an increase of 15 per cent in the number of FOI reviews each year, MsHampton estimated that an additional nine full-time equivalent staff would be required in the 2019-20 financial year, in addition to the 19 full-time equivalent staff employed by the OAIC at that time to handle FOI matters (28total). On this same basis, Ms Hampton estimated that a total of 35 full-time equivalent staff would be required in 2021–22, and 28 full-time equivalent staff would be required in 2022–23. In 2021–22, however, the OAIC received 60 per cent more IC reviews than the previous year; well above the estimated 15percent increase.
4.14During Supplementary Budget Estimates in 2019, the Australian Information Commissioner, Ms Angelene Falk, pointed to a gap between the volume of FOI reviews and the staffing levels of the OAIC's FOI functions, calling for a 50percent increase in staff to manage the increased workload.
4.15On 8 June 2022, Ms Falk wrote to the Attorney-General in relation to the functions and the resourcing of the OAIC. Ms Falk stated in the letter, 'we are unable to keep up with the incoming work with less funding for this function than we received in 2014–15, owing to the increased volume and complexity of the work'.
4.16During Budget Estimates on 23 May 2023, Ms Falk supported the view that additional resources were needed for the OAIC, telling the Senate Legal and Constitutional Affairs Legislation Committee: 'I have sought to try to enable that to the extent that I can within my control'.
4.17Ms Falk insisted in evidence to the committee that additional resources were needed to resolve the backlog of FOI appeals, stating that government funding had historically been 'insufficient to adequately acquit' the FOI functions of the OAIC. Ms Falk told the committee that she had been 'acutely aware' of the OAIC's lack of resources, stating:
I have made eight budget bids in the five years I have been in this role, met with ministers, and written numerous letters in relation to this issue. I am very acutely aware of the need for resources.
4.18Ms Falk also told the committee that a large number of privacy measures had impacted the OAIC's ability to 'create efficiencies to reallocate funding for other purposes'. The Information Commissioner further stated:
While I have intentionally allocated additional funds to the FOI function beyond what has been specifically appropriated by the government for FOI, I have not been in a position to apply further additional funding at a level that would be sufficient to address the volume and complexity of incoming FOI work.
4.19In supplementary evidence provided to the committee, Ms Falk outlined steps she had taken to direct additional resources to the OAIC's FOI functions.
4.20Since 2016, the OAIC's only FOI-specific funding allocation was $3.9 million over four years in the 2021–22 budget, with around $1 million allocated per year thereafter. This funding was for the appointment of an FOI Commissioner and three additional staff to assist with the FOI functions of the OAIC.
4.21On this matter, AGD submitted:
The department notes recent public statements regarding challenges in OAIC funding…[and] continues to work with the InformationCommissioner and other agencies to understand resourcing requirements.
4.22Many of the submissions received by the committee pointed to the OAIC's lack of resourcing as a significant factor in delays across the FOI regime. The LawCouncil, for example, called for additional funding for the OAIC to support training and support for departmental and ministerial staff engaged in FOI decision-making.
4.23Mr Rex Patrick also called for additional funding for the OAIC, and submitted that the OAIC had seen 'a dramatic increase in the number of IC review applications with no funding increases'. However, Mr Patrick suggested that whilst the OAIC may need additional resources, cultural change and a change in the way FOI reviews are conducted may be more beneficial. Mr Geoffrey Watson, Director of the Centre for Public Integrity, told the committee that providing additional resources to the OAIC was 'counterproductive', arguing that reforms were needed to the structure of the FOI regime or to the processes by which IC reviews are conducted (see below), but that the establishment of the OAIC had resulted in years of delays.
4.24Dr Joyce Noronha-Barrett cautioned that decision-making agencies may take advantage of the lack of resourcing within the OAIC to avoid scrutiny. MsCarter similarly stated:
Under-resourcing Information Commissioner Offices is infamous as a method whereby governments delay the processing of FOI revies and the release of information which may be perceived as unflattering to the government's image.
The 'resourcing narrative'
4.25In evidence to the committee, Mr Leo Hardiman PSM KC agreed that it was 'abundantly clear' that 'more resources were needed if the very large backlog in IC review applications was to be resolved in any satisfactory way'. However, he asserted that only funding formally earmarked for the OAIC's FOI functions was actually allocated for these purposes, despite his understanding that appropriations were made at the departmental rather than administrative level; meaning additional funding could be allocated to the various functions of the OAIC at the discretion of the agency head, the Information Commissioner: '[t]here was accordingly at least the potential for some of the OAIC's appropriated departmental funds to be spent on additional resources for the performance of the FOI functions', he stated. Mr Hardiman also told the committee, 'I think [the Information Commissioner] had some capacity at least to allocate further resources to the FOI functions, if she had desired to do so'.
4.26Mr Hardiman described this as the 'resourcing narrative', that is, the suggestion that the only reason for the resourcing deficiencies within the FOI functions of the OAIC were due to the government failing to provide sufficient funding.
4.27Mr Hardiman told the committee that the 'resourcing narrative' was central to the OAIC's line of argument in Patrick v Australian Information Commissioner, in which the presiding judge ultimately ruled that delays were not legally unreasonable given the OAIC's lack of resources (see Chapter 2). The ACF argued that the Federal Court decision in Patrick v Australian Information Commissioner drew a clear connection between resourcing and delays in the processing of FOI appeals.
4.28Ms Falk told the committee that, as the respondent, she was 'ultimately responsible for the conduct of the Patrick matter', however, Mr Hardiman was authorised to instruct on Patrick v Australian Information Commissioner, and he was 'actively involved' in the matter. Mr Hardiman insisted that:
…it was very clear that I would not be providing any sign off on the substantive legal arguments to be made in the matter. Rather, as was both necessary and appropriate, the IC [Information Commissioner] was very clear that as the respondent to the proceedings she would provide that sign off…
4.29Mr Hardiman also told the committee that:
…it became increasingly apparent to me that the IC, following a communication with the former government, had decided that she would never in any substantial sense allocate additional OAIC resources to the performance of the FOI functions…only appropriated funds which had been formally earmarked by the government of the day for FOI purposes would be allocated to the performance of the FOI functions.
4.30Mr Hardiman also expressed concern at what he perceived to be decisions to allocate internal resources for corporate support and discretionary privacy policy functions, in preference to core FOI functions.
4.31Again, Mr Hardiman's claims were heavily contested by Ms Falk.
Adequacy of resourcing within the Administrative Appeals Tribunal
4.32Several submitters and witnesses recommended only one layer of merits review, with the Administrative Appeals Tribunal (AAT) taking on an expanded role in managing FOI appeals. Other submitters and witnesses recommended that applicants be permitted to bypass the OAIC and seek reviews directly from the AAT, as detailed below. In response to such proposals, Mr Michael Hawkins, Registrar at the AAT told the committee that 'we have no capacity to take on additional work without additional resources'.
Fees, costs, and charges
4.33The committee received some evidence that suggested that administration fees and charges would serve to deter voluminous and vexatious FOI applications whilst enabling agencies to recover some of the costs associated with overseeing the FOI regime. Professor John McMillan AO told the committee:
Fees and charges have always been a vexed issue in the FOI scheme. They can be used by agencies as a cost barrier to thwart FOI access. On the other hand, charges can play a useful role in supporting agencies to initiate discussion with applicants about reducing broad requests to a more manageable level.
4.34Home Affairs told the committee that the use of charges should be considered as one possible method to help manage repeat applicants, noting the difficulty of having applicants declared 'vexatious' (see above).
4.35Other evidence suggested that fees would disincentivise engagement with the FOI regime and would disadvantage the most vulnerable applicants, working in opposition to the objectives of the FOI act. Civil society representatives were broadly critical of the proposal to introduce fees.
4.36ACF, for example, noted that decision-making agencies routinely charge lower actual fees than those originally quoted to applicants, cautioning that, consistent overestimating of charges could have a deterrent effect and may discourage users of the FOI system from pursuing information that is in the public interest to access.
4.37PIAC similarly told the committee that fees would disincentivise their clients from making FOI applications. Even if a fee waiver could be sought, PIAC cautioned that the administrative burden on both the applicant and the department would likely be counterproductive:
If our goal here is to create an FOI system that is efficient and streamlined, having fees is not the way to do that.
4.38RACS also advocated strongly against the use of administrative fees for personal information, telling the committee that such fees would disincentivise applications, thereby hindering and working in opposition to the objectives of the FOI Act. RACS told the committee that many of its clients faced severe economic hardship and would be unable to cover any costs imposed on them to access their personal information through FOI applications. RACS further argued that:
For a functioning system of democracy and administrative law, individuals must be able to access their personal information held by government agencies with as minimal barriers as possible.
4.39The Law Council told the committee that, in its view, people should not be charged for access to their personal information.
4.40Alternatively, some witnesses recommended that government agencies be required to contribute to the costs of review. Mr Hardiman proposed that such an approach could provide a financial incentive for decision-making agencies to resolve FOI disputes more efficiently and effectively. However, the LawCouncil argued that new funding is required, cautioning that making decision‑making agencies pay a fee for matters referred to the OAIC would have limited benefits: 'resourcing pressures cannot be solved solely by measures that simply move existing Commonwealth money between agencies', it argued.
4.41Ms Megan Carter conceded that fees may reduce the number of appeals and therefore the backlog of FOI applications, but she argued against the introduction of a charging fee for IC reviews, arguing, 'experience with the AAT has shown that it can become a matter of justice only for the wealthy'.
Proposed structural and legislative reforms
4.42This section outlines structural and legislative reforms proposed by submitters and witnesses.
Governance of the FOI regime
4.43Some evidence before the committee pointed to the need to strengthen the current FOI structures that exist across the Commonwealth public service—both at the application and review stages—as detailed throughout this chapter. Other evidence, however, suggested that the structure itself, and the legislation underpinning the FOI regime, were part of the problem and required reform, as detailed below.
4.44The Centre for Public Integrity (CPI), for example, proposed that consideration be given to the question of whether the agency holding the information that is subject to an FOI request should be the primary decision-maker. CPI suggested that one may be 'proceeding from a false basis' with such an approach.
4.45Citing Patrick v Australian Information Commissioner (see Chapter 2), DrAmanda‑Jane George supported a considered overhaul of the FOI framework in light of the 'unquestionable shortage of resources' experienced by the OAIC.
4.46ARTK submitted that the OAIC had a privacy focus, arguing that the Commonwealth's FOI functions should be independent rather than subordinate to the Information Commissioner.
4.47Professor Tarr noted that the alignment of FOI and privacy functions within the OAIC was 'superficially attractive', but told the committee that the two areas were 'not the same thing' and should be 'freestanding'. Mr Hardiman similarly described the three Commissioner model as an 'oddity', arguing that there was 'very little practical synergy between the' privacy and FOI regimes. MrHardiman recommended a 'holistic review' of the FOI Act, including consideration of whether privacy and FOI functions should be the subject of discrete governance arrangements.
4.48Several witnesses and submitters proposed that the FOI review functions of the OAIC be relocated into a separate entity. Professor McMillan suggested that consideration be given to locating these functions within the office of the Commonwealth Ombudsman. The Australia Institute similarly proposed that the model of an Ombudsman be considered at the Federal level, as is in place for South Australia (see Chapter 2). In answers to questions on notice, TheAustralia Institute provided the following views on moving the FOI review function to the Commonwealth Ombudsman:
While it could improve things to make an ombudsman responsible for FOI reviews (as in South Australia and as discussed in our submission), I am concerned more generally that the Commonwealth Ombudsman is being assigned many and varied accountability responsibilities by both the federal and [Australian Capital Territory] governments, which may stretch it too thinly or split its focus.
Before FOI review responsibilities were placed with the Ombudsman, I would recommend considering whether the Ombudsman has accumulated non-core functions that would be better placed with other accountability bodies (and whether such bodies already exist or would need to be established).
4.49RACS advocated for the establishment an independent commissioner, separate from the OAIC. PIAC proposed a slightly different model in which the FOI regime would be placed under parliamentary oversight. ARTK also told the committee that, to ensure independence and effectiveness, the Commonwealth's FOI review function should report to parliament and potentially have its budget set by parliament.
4.50Mr Patrick cautioned against removing FOI functions from the OAIC, but told the committee that there were circumstances in which it may be preferable to apply for review directly to the AAT.
4.51The Law Council recommended that consideration be given to relocating the ICreview functions to the AAT or its replacement body (see Chapter 2). However, the Law Council suggested that 'some adjustments' would have to be made if the AAT were to take on these functions, including the provision of further resources as well as legislative change to enable the AAT to decide matters on the papers rather than conduct a full merits review of each case.
4.52The Australian Broadcasting Corporation (ABC) disagreed that the structure of the OAIC was a significant factor in the operation of the FOI system, arguing that resourcing was the key issue.
4.53The OAIC submitted that there are 'essential differences' between the Commonwealth FOI regime and those regimes established in other jurisdictions in Australia. As such, the OAIC cautioned; '[c]onsideration of provisions in state legislation in isolation from their broader legislative framework may lead to unintended consequences in the Commonwealth setting.
Legislative reform
The committee received extensive evidence related to shortfalls in the current legislation underpinning the FOI regime. Mr Hardiman observed that the Freedom of InformationAct 1982 'is now relatively old', stating:
It was enacted in the context of a paper-based rather than digital world where the volume of government-held information, and the capacity to manage and manipulate data digitally, were far less. The Act is arguably overly complex and the exemptions regime would benefit from review.
4.54Ms Megan Carter similarly argued that 'a thorough review of the Act as a whole is due'.
4.55Four specific areas that witnesses and submitters highlighted as being in need of reform included streamlining review requirements, access to the documents of a minister, the publication of information released under FOI, and the inclusion of anti-avoidance measures. Each of these areas is discussed below.
Merits reviews
4.56Mr Hardiman recommended that consideration be given to whether to retain a full merits review function at the regulatory level, stating:
…the current full merits review function is not a simple or quick function. It requires the affording of procedural fairness, a proper consideration of all submissions made by parties and all legal issues, and the drafting of appropriately framed decisions demonstrating those activities of consideration and the outcomes of them.
4.57Mr Hardiman told the committee that, in his view, it would be more appropriate to have only one level of full merits review, which he recommended be conducted by the AAT (or its successor).
4.58Mr Watson from the CPI told the committee that the Information Commissioner's decision‑making role in the FOI regime constituted an intermediate decision. As such, he asserted that the Information Commissioner may not be required to give reasons for a decision, merely to make a decision.
4.59The Law Council similarly recommended that the FOI review process within the OAIC should be made 'quicker, simpler and cheaper', noting that applicants could appeal to the AAT to have a full-blown hearing. PIAC told the committee that the provision of explanations around decisions was secondary to documents being released and the effective functioning of an independent oversight mechanism. Grata Fund similarly emphasised the importance of decisions to release documents rather than the provision of detailed reasoning.
4.60ACF told the committee that IC reviews were conducted as part of a 'pseudo judicial process', with the effect that outcomes are significant delayed. It recommended that the decision-making process be streamlined. The ACF also noted that although access to requested documents should be the highest priority of the FOI system, a reasoned decision could be valuable if it holds 'quasi precedential value'. Nevertheless, the ACF cautioned that the utility of these decisions would be limited if decision-making agencies did not consider and apply them to future decisions and practices.
4.61Some witnesses claimed that existing legislation already enabled the FOICommissioner to undertake less comprehensive reviews than is the current practice. Mr Watson, for example, told the committee that as the role of the OAIC was one of 'intermediate appeal', there was no requirement for the Information Commissioner to give procedural fairness to parties to a review or must provide reasons for an IC review decision. Mr Patrick similarly suggested that, as the OIAC review is at an intermediate stage, it was likely possible to shorten the IC review process. Mr Patrick also submitted that simple reviews or reviews involving a strong precedent should be made rapidly, along the lines adopted by the South Australian Ombudsman (see Chapter 2), whilst more complex reviews could be referred to the AAT.
4.62Mr Watson argued that IC reviews should be provided on the basis of no reasons and no hearings, requiring only a decision from the Information Commissioner. Mr Watson noted that FOI reviews before the AAT would continue to require procedural fairness and the provision of reasons as part of a full merits review process.
4.63According to evidence given by Mr Hardiman, the Information Commissioner proposed consideration of faster and less risk-averse approaches to finalising ICreview decisions. Mr Hardiman characterised these as 'tick and flick' decisions that would be prepared by staff members rather than full reasoned decisions of the FOI and Information Commissioners. Mr Hardiman rejected the merits of such an approach:
On any properly educated understanding of the general quality of the draft decisions being produced, this was simply an untenable proposition and one likely to create more work in other parts of the review system. Not to mention an inappropriate abdication of decision-making responsibility.
4.64The Information Commissioner told the committee that she 'started a conversation with Mr Hardiman as to whether a more streamlined approach to the drafting of statements of reasons could be adopted to reduce repetition, provide greater clarity, and reduce the time for drafting', and subsequently drafted a template for discussion. The Information Commissioner understood that Mr Hardiman had sought advice from the Australian Government Solicitor on whether a more streamlined approach to statements of reasons would comply with statutory requirements, and Ms Falk was verbally advised that the approach would not be sufficient.
4.65Some witnesses argued that legislative change is required to simplify the FOI review process. The Law Council, for example, told the committee that under the Acts Interpretations Act 1901 (which establishes rules for interpreting Australian Acts and other legislation), the use of the word 'reasons' within the Freedom of Information Act 1982 (FOI Act) required that IC reviews consider all the evidence or all the material findings of fact, necessarily requiring a somewhat lengthy process. It therefore cautioned that, without legislative change, if IC reviews were to become less comprehensive, the InformationCommissioner would run the risk of having decisions challenged in Federal Court.
4.66Professor McMillan similarly cautioned that the requirements of the FOI Act, as currently drafted, inevitably promote lengthy consideration of IC reviews. He therefore recommended that the FOI Act be modified to make clear that the ICreview process not be a full merits review process but would instead provide a rapid decision, for which reasons would not be required. Dissatisfied parties could then appeal to the second layer of merits review (currently the AAT).
4.67Mr Hardiman supported the view that efforts to reduce the complexity of ICreviews would require legislative change, stating that 'a full merits review function really requires a decision that reflects consideration of submissions'.
4.68The OAIC drew the committee's attention to section 55K of the FOI Act, requiring IC decisions to be made in writing and include a statement of reasons for the decision. The OAIC noted, '[i]mplementation of a process that does not provide reasons would require amendment to the FOI Act'.
4.69The Hawke Review recommended amending section 55 of the FOI Act to clarify that IC reviews may be finalised by agreement, and that in such circumstances, written decisions of the Information Commissioner are not required. The OAIC submission to the Hawke Review noted 'informal resolution is generally quicker and more affordable than adjudication'.
4.70Internal OAIC correspondence provided to the committee shows the regulator was considering legislative amendments which could improve IC review procedures and processes in February 2023. Amendments to Part VII of the FOIAct as recommended by the Hawke Review were canvassed as a mechanism to 'assist in more efficient finalisation of IC reviews'.
Documents of a minister
4.71Access to documents of a minister is covered under subsection 4(1) of the FOI Act. However, the OAIC has interpreted this section to potentially exclude documents of a former minister, even in cases where the application was lodged whilst the minister was still in office (see Chapter 2).
4.72The Grata Fund and The Australia Institute noted that, due to lengthy delays in processing FOI applications and reviews (see above), the relevant minister may have moved or may have left office before a decision is reached, at which time the documents in question may no longer be available to the applicant. TheAustralia Institute submitted that this 'loophole' means that 'documents can be destroyed when ministers are no longer in office'. The Grata Fund submitted that the Information Commissioner's interpretation of subsection 4(1) 'leads to the absurd consequence that a minister and the government can escape scrutiny through ministerial reshuffles'.
4.73The NSW Council for Civil Liberties recommended that subsection 4(1) be amended to expressly include documents of a former minister, submitting that the Information Commissioner's interpretation is 'inconsistent with the objectives of open government' and 'provides loopholes for scandal-plagued ministers to avoid scrutiny'. The PIAC and the Grata Fund similarly called for subsection 4(1) to be amended such that a 'document of a minister' be defined as a document in the possession of the minister at the time of the FOI application. The Australia Institute recommended that the FOI Act be amended to require, in the event of a change of minister, that the documents of the former minister be retained and kept within the reach of FOI law'. PIAC proposed that documents that may be subject to an FOI request be transferred to the OAIC until a decision is reached.
4.74The OAIC noted that Federal Court proceedings are underway to test the Information Commissioner's interpretation of this matter.
Publication of released information
4.75As detailed in Chapter 2, a decision-making agency must make available information released under an FOI request, either directly (for example through a link on its website) or through the provision of an email address from which the information may be requested. Dr George summarised the effect of this section of the FOI Act which allows agencies to provide details of how the information may be obtained, rather than actually making it available.
4.76The Law Council described these provisions as a 'barrier' and an 'unnecessary hurdle' that may prevent members of the public from accessing information that has already been determined to be in the public interest to release.
4.77The OAIC provided the following guidance on the matter:
The Information Commissioner is of the 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, unless it is not possible to upload documents due to a technical impediment, such as file size, the requirement for specialist software to view the information, or for any other reason of this nature. This approach is consistent with the objects of the FOIAct.
Vexatious applicants
4.78The Information Commissioner may declare a person to be a 'vexatious applicant' if they are perceived to have repeatedly engaged in an abuse of the FOI process, such as harassing or intimidating staff, unreasonably interfering with an agency's operations, or using the FOI Act to circumvent access restrictions imposed by a court. Such a declaration may limit the applicant's ability to have further FOI applications or reviews considered.
4.79The OAIC FOI guidance for government agencies includes an 18-page chapter on vexatious applicant declarations. Active vexatious applicant declarations are listed on the OAIC website, with full cases available on the AustLII database.
4.80Despite this guidance, AFSA told the committee that the process to have an applicant declared 'vexatious' was lengthy, unclear, and resource-intensive—a position supported by Home Affairs. AFSA noted that the limited availability of past declarations made it difficult for agencies to identify a clear threshold for when applicants have become vexatious, and to work this through in an application for a declaration.
4.81AFSA considered that the OAIC should provide more support and comprehensive guidance, particularly for smaller agencies, on how to manage applicants who may be vexatious. Additionally, it was noted that the introduction of a proforma for FOI submissions across government would help guide applicants on how to 'conduct themselves in a manner that is consistent with the intent of the FOI regime'.
4.82The Hawke Review recommended that the FOI Act be amended to permit agencies to decline to handle a repeat or vexatious request or requests that are an abuse of process, without impacting on the applicant's ability to make other requests or remake the request that was not accepted. It was envisioned the applicant would be able to appeal against such a decision to the OAIC. This approach would remove the requirement for agencies to seek a declaration from the Commissioner. This recommendation was supported by the OAIC submission to the review.
4.83Part 12 of the FOI guidelines on vexatious applicant declarations was last revised in October 2021. The OAIC has indicated that it intends to take into account evidence received by the committee regarding the complexity of applications for vexatious applicant declarations when next updating these guidelines.
Proactive disclosure and administrative access
4.84A number of submitters argued that the use of proactive disclosures could and should be more fully integrated across the Australian Public Service (APS). Professor McMillan, for example, submitted that it was anticipated that, as part of the 2010 FOI regime reforms, proactive disclosures would have become 'more dynamic over time', potentially limiting the FOI caseload across the APS.
4.85The OAIC currently provides guidance on disclosure logs and the InformationPublication Scheme (IPS) to support agencies engaging in proactive disclosure of government held information. However, Professor McMillan noted that there was an absence of policy in this area. He recommended that the OAIC consider how 'proactive disclosure and disclosure by design can operate in a practical manner'.
4.86Professor McMillan suggested areas in which more could be done could include the automatic publication of ministerial diaries and legislative change to impose a time limit on certain categories of conditional exemptions. The AustraliaInstitute similarly pointed to ministerial diaries, Cabinet documents not involving national security, and representations to government by interest groups as some areas for automatic proactive disclosure.
4.87The OAIC submitted that proactive disclosure across government is a 'key mechanism' to provide quicker, more flexible, and less costly access to information, and to reduce pressure on the FOI system. Moreover, the OAIC argued that proactive disclosure 'demonstrates a pro-release culture that builds public trust'. The Australia Institute supported this position, submitting:
Proactive disclosure of government documents, where feasible, would increase transparency and reduce the need for FOI requests. It would also set a cultural expectation that government information should be publicly available where possible.
4.88The Law Council recommended that decision-making agencies be properly resourced to 'build a culture of proactive disclosure', for example through the development of guidance material and training to agency staff.
4.89PIJI and CAJ also supported the proactive release of documents outside the FOIAct to free up resources within decision-making agencies, and called for better systems and processes to make agency staff and the public aware of what information had been released and where to find it.
4.90ARTK cautioned that information that is made available through proactive release generally consists only of documents which paint the government in a positive light.
4.91The OAIC advised that it will be undertaking a statutory review of the IPS in consultation with all Australian government agencies in 2023 to determine compliance with the scheme's obligations, and inform future educative approaches to proactive publication.
Consideration of a review of the FOI regime
4.92Evidence before the committee diverged on the question of whether or not a review of the FOI system was necessary. On the one hand, the AustralianPressCouncil advocated for the FOI regime to be subject to a comprehensive review, arguing that such a review be conducted by a broad-based and independent panel to examine the extent to which the current system is fit-for-purpose. The Australian Press Council further suggested the review define appropriate timeframes for FOI applications and reviews, explore whether to impose statutory timeframes, and examine resourcing of the FOI regime.
4.93In support of this position, the Country Press Association recommended that a review should be conducted 'at arms length' from the government.
4.94On the other hand, the CPI told the committee that 'the last thing in the world we need is some sort of further review into the FOI scheme'. Similarly, the NSWCouncil for Civil Liberties stated that many of the necessary reforms to the FOIregime were already clear, and as such a further review is not required.
Resignation of the FOI Commissioner
4.95The reason for the resignation of the FOI Commissioner was clearly articulated in the evidence provided to the committee by the former FOI Commissioner, Mr Leo Hardiman. At the hearing on 29 August 2023, Mr Hardiman said:
Mr Hardiman: …With respect to term of reference (a), in the statement I made on 6 March 2023 announcing my resignation I said that the powers necessary to make further changes to ensure the timeliness of IC reviews, Information Commissioner reviews, were not within those conferred on me as FOICommissioner. The powers I was referring to were powers relating to the resourcing of the OAIC's FOI functions and powers relating to broader agency management matters affecting the performance of those functions. Those powers were within the sole remit of the Information Commissioner, who I'll refer to as the IC. Immediately upon commencing my appointment in April 2022 and in the months afterwards, I encountered a large number of significant issues concerning or affecting the performance of the FOI functions which required close consideration and attention. I set those issues out in some detail in my more detailed statement, but broadly described they included serious staff and resourcing issues, a significant lack of appropriate focus on the main problems in the performance of the FOI functions, particularly the IC review function, a lack of sufficient engagement with FOI technical issues even when staff were seeking that engagement, unproductive relationships with regulated agencies, a diversion of staff away from core FOI work for the purpose of making constant process changes which did not in any significant sense deal with the real problems in the performance of the FOI functions, and an associated feeling of complete overwhelm amongst the more senior staff members of the OAIC's FOI Branch, a shifting of responsibility for failures to the staff of the FOI Branch, together with a culture of the OAIC's FOI functions being of secondary importance to its privacy functions, cycles of panic at the most senior level particularly around Senate estimates appearances and critical stages of the Patrick unreasonable delay litigation, a lack of commitment to the three-commissioner model established by the Australian Information Commissioner Act, and a practice at the most senior level of developing narratives designed to present the OAIC's performance of the FOI functions in the best possible light while distracting from engagement with important issues affecting their performance...
I pushed on, and significant structural changes with a much greater focus on the active management of IC reviews were implemented on 1 February 2023. As at the cessation of my appointment three or so months later that restructure had begun to result in increased progression of substantive ICreview matters. However, it was abundantly clear that, in addition to these structural changes, more resources were needed if the very large backlog in IC review applications was to be resolved in any satisfactory way...
Resignation was an incredibly difficult—in fact, the most difficult—decision of my career to contemplate, but I could not with the necessary sense of integrity play the game of maintaining the status quo. Change was desperately required, and it was not going to occur if I continued on...
4.96As detailed above, the former FOI Commissioner, Mr Hardiman, had formed the view that the Information Commissioner would not allocate additional resources for the FOI functions of the OAIC and that only funding specifically earmarked by the government for such purposes would be allocated to FOI functions. Mr Hardiman told the committee that he foreshadowed his potential resignation with the Information Commissioner around mid-September 2022, when he indicated that he may have 'no option but to resign' if more resources were not allocated to the FOI functions of the OAIC.
4.97The Information Commissioner, Ms Falk, told the Senate Legal and Constitutional Affairs Legislation Committee in May 2023 that she was unaware of Mr Hardiman's intention to resign prior to the announcement via social media: '[he] did not raise matters with me prior to his resignation, nor foreshadow his resignation'. However, in evidence to the committee on 29August 2023, the Information Commissioner stated: 'I do recall him referencing the possibility of resignation in the context of preparing for the May budget bid'.
4.98On 23 February 2023, Mr Hardiman and the IC met with officials from the AGD, including the Secretary, Ms Katherine Jones PSM, and Deputy Secretary, Mr Simon Newnham. During the meeting, Mr Hardiman recounted that the Secretary conveyed 'in absolute terms' that no additional funding would be allocated to the FOI functions of the OAIC during the then-upcoming May 2023 budget, nor was it likely, Mr Hardiman understood, that additional funding would be made available in subsequent budgets. Mr Hardiman told the committee that he concluded that:
…in the absence of some re-allocation of resources within the OAIC, there was simply no possibility of additional staff and no way forward in satisfactorily or sufficiently resolving the IC reviews backlog and increasing timeliness of IC review decisions in future.
4.99Mr Hardiman told the committee that, following the 23 February meeting, he came to the view that it was 'untenable' for him to continue in the role of FOICommissioner:
I could not continue to accept significant remuneration from the public purse when, in effect, I was prevented from performing the FOI functions in a way which I considered would properly give effect to the objects of the FOI Act and further the accountability of government in the way the Parliament had intended.
4.100Mr Newnham confirmed to the committee that the 23 February meeting occurred as described by Mr Hardiman and that the substance of the meeting broadly conformed to Mr Hardiman's summary.
4.101Ms Falk stated that Mr Hardiman did not raise with her 'in any substantive way' the issues and allegations outlined in his statement to the committee:
Many of these [issues] were not raised with me at all. Nor did he convey that they were of such magnitude that he would take the serious step of resigning less than 12 months into a five-year term.
4.102On 5 March 20223, Mr Hardiman announced his resignation via social media, citing his lack of power to implement necessary changes to the IC review process (see Chapter 1). More specifically, Mr Hardiman told the committee that he lacked the powers necessary to either address the lack of resourcing within the OAIC or to address the broader management and organisation of the OAIC with a view to improving the performance of its FOI functions. He also pointed to a range of cultural and structural issues within the OAIC as contributing to his resignation. 'These issues…left my position untenable', asserted Mr Hardiman, who also told the committee that he concluded that he would 'not be able to sufficiently repair the consequences of the very substantial deficiencies which had occurred in the performance of the FOI functions [of the OAIC]'.
4.103Mr Hardiman described the decision to resign as:
…incredibly difficult—in fact, the most difficult—decision of my career to contemplate, but I could not with the necessary sense of integrity play the game of maintaining the status quo. Change was desperately required, and it was not going to occur if I continued on.
4.104Ms Falk told the committee that Mr Hardiman declined to discuss the reasons for his resignation with her. Ms Falk had previously advised the Senate Legal and Constitutional Affairs Legislation Committee during Senate Estimates on 23 May 2023 that Mr Hardiman had not outlined changes that were needed within the OAIC in relation to his resignation.
4.105On 10 March 2023, Mr Hardiman met with Mr Newnham. Mr Newnham told the committee that Mr Hardiman had asked that the conversation remain confidential, but outlined the purpose of the meeting as follows:
It was a high level conversation. It went to basically seeking advice on what was behind the resignation. We were surprised and thrown a bit by that resignation so we wanted to check on the wellbeing of Mr Hardiman and his team and seek advice on what we, as a department, could do to support the final stages, including thinking about the finishing date for Mr Hardiman and the commencement date for an interim FOI commissioner. I sought knowledge about what he thinks is most important in the role going forward.
4.106The committee requested from Mr Newnham the notes and minutes of the 10March meeting with Mr Hardiman. Mr Newnham indicated that the document was subject to a prior Public Interest Immunity (PII) claim by the minister representing the Attorney-General and took on notice to consider providing the minute of the meeting to the committee.
4.107On 21 September 2023, AGD responded to the committee's request for the 10March meeting minute:
The minister representing the Attorney-General has been consulted and will not be revoking his public interest immunity claim for the reasons laid out in the letter from Senator Watt on behalf of the Attorney-General to the President of the Senate dated 27 March 2023.
4.108The PII claim in relation to documents, inclusive of the 10 March 2023 meeting minute, is appended in full at Appendix 4. The claim raised the grounds of confidentiality of Cabinet processes and an unreasonable invasion of privacy. The committee reflects on the validity and merits of this claim in the following chapter.
Impact of the resignation of the FOI Commissioner
4.109The Law Council submitted that it was concerned that Mr Hardiman's resignation was:
…a symptom of an FOI regime that is unable to properly give effect to its legislative objectives. Specifically…the FOI scheme's functionality has been undermined by systemic issues, in which the under-resourcing of the OAIC and delays at the agency level are heavily contributing factors.
4.110Ms Gray submitted that Mr Hardiman's resignation would have both immediate and long-term impacts on public sector transparency and the right of the public to access government information. Specifically, Ms Gray speculated that, with the position of FOI Commission vacant (as it was at the time of her submission), the FOI regime would likely experience further delays and government agencies may be 'more inclined to withhold information, knowing that there is no FOI Commissioner in place to review and potentially overturn their decisions'. Ms Gray further claimed that '[t]his power imbalance shifts the balance in favour of government obfuscation and undermines the public's right to know'.
4.111Ms Gray submitted that the impact of Mr Hardiman's resignation on the FOI regime would be to deter public engagement and erode public confidence in government decisions.