Chapter 5Committee views and recommendations
The resignation of the former FOI Commissioner
5.1The committee accepts the reasons provided by Mr Leo Hardiman PSM KC, the former Freedom of Information (FOI) Commissioner, as detailed in Chapter 4 as the reasons for his resignation. Ultimately, in all the circumstances, MrHardiman was not prepared to continue in the position of FOICommissioner where he considered he did not have the power to discharge his obligations, in particular, to progress material resolution of the substantial backlog of Information Commissioner reviews (IC reviews—see table 3.3 for details of the case backlog). For Mr Hardiman, this was a matter of integrity. Given he believed that he would not be provided the requisite resources to discharge his obligations as FOI Commissioner and that he did not have the power to make substantial change to organisational culture and structure within the Office of the Australian Information Commissioner (OAIC) under the ThreeCommissioner Model, he made the decision to resign. He was not prepared to be passive under the status quo. The committee considers this to be a position of integrity.
5.2The committee further considers that the resignation of Mr Hardiman as FOICommissioner is a symptom of a dysfunctional and broken FOI system. In the committee's view, Mr Hardiman genuinely attempted to fulfill the duties of his appointment to the best of his ability for as long as he was able. At no doubt great personal cost to Mr Hardiman, his resignation has had the effect of shining a bright light on the failings of the current system. This committee inquiry is a direct result of his actions.
5.3By early 2023, it appears that Mr Hardiman had formed the view that it was not within his power to meaningfully address the backlog of FOI reviews within his office. In light of the evidence received by the committee, particularly with respect to resourcing, this view appears to have had a very solid foundation. Concerned at the ethical implications of continuing in the role under these circumstances, and in an attempt to encourage further efforts to address the systemic deficiencies he faced, Mr Hardiman resigned. The committee is strongly of the view that it should not have come to this.
5.4The committee was very impressed with the professional way in which MrHardiman discharged his role as FOI Commissioner. This was exemplified in the decision he made to travel by bus between Canberra and Sydney to attend meetings as an expression of his will to preserve funds for the discharge of his core FOI obligations. This evidence was provided to the committee during the following exchange at the public hearing on 29 August 2023:
CHAIR: I've got two quick questions and then Senator Shoebridge will have some questions. We are going a little bit over time, Deputy Chair, but I think this is very important. Mr Hardiman, I wrote down what you said because it struck me at the time. As to the interaction that occurred when you announced your resignation in the context of an interaction between you and the Information Commissioner, could you please tell the committee what occurred?
Mr Hardiman: I had COVID in the week leading up to my announcement. I was quite unwell that week and the weekend when I was preparing all of that stuff. The announcement was made on 6 March. I couldn't go to Sydney on 6 March, but I was mindful of wanting to be there to support the team. This is ridiculous, but in an effort to save funding—and suggest it to be put towards FOI—I was catching the bus to and from Sydney every time I went there.
CHAIR: Sorry. Let me get this clear. In the effort to preserve funds so they could be applied to discharging the FOI function within the OAIC, you were catching the bus from Canberra to Sydney?
Mr Hardiman: Yes, there's an email communication about that I had with the Information Commissioner, who wanted me to attend an international conference. I said that I wasn't prepared to and that the money should be put towards the FOI functions. I also determined that I would then take the lowest cost possible travel to and from Sydney when I was attending.
5.5The committee considers it extremely unfortunate that a senior public servant of the calibre of Mr Hardiman should consider himself compelled to resign as a matter of integrity in these circumstances. This should serve as a wakeup call to the Parliament that the current parlous situation with respect to the Commonwealth FOI system is unacceptable. It needs to be addressed as a matter of urgency.
5.6Prior to the committee providing its views and recommendations with respect to the measures which need to be taken to address the current situation, the committee considers itself obliged to consider the disturbing evidence received by the committee that employees (past and present) within the OAIC have suffered due to the work environment. It is noted that the OAIC and the Information Commissioner, Ms Angelene Falk, sought to counter many of the allegations which had been made by Mr Hardiman and referred to the internal processes of the OAIC to deal with such issues and the recent improvement in employee survey results. The committee notes that the existence of policies and procedures to deal with employee issues is not a guarantee that they will be utilised; especially in circumstances where employees may be fearful of the impact of making a complaint on future employment prospects.
5.7It is not the role of this committee to be the final adjudicator in relation to the competing evidence received by Mr Hardiman and Ms Falk. However, when a former senior official of the standing of Mr Hardiman makes such allegations with conviction and clarity, there is an obligation to act. Accordingly, in all the circumstances, the committee is of the unanimous view that there needs to be an urgent independent investigation undertaken by a party external to the OAIC and reporting to the Attorney-General's Department to consider the matters raised by Mr Hardiman in relation to workplace behaviour within the OAIC, any impact this has had on employees past and present, and appropriate action which needs to be taken. Every effort should be made to engage with employees both past and present to obtain evidence. The committee does not come to this conclusion lightly but is deeply concerned with the wellbeing of employees of the OAIC both past and present.
5.8The committee recommends that an independent investigation be undertaken, reporting to the Secretary of the Attorney-General's Department and not the Office of the Australian Information Commissioner (OAIC), to consider the matters raised by Mr Hardiman in relation to workplace behaviour within the OAIC, the impact on employees (past and present), and appropriate action which needs to be taken.
The Commonwealth FOI system is not fit for purpose
5.9It is clear that the Commonwealth Freedom of Information (FOI) system is not working effectively and for some time has not functioned as it was intended. A series of interrelated factors outlined in the preceding chapters have rendered the operation and the administration of the FOI regime inefficient and ineffective, undermining the important objectives of the Freedom of Information Act 1982 (FOI Act) itself. The backlog of active IC reviews within the OAIC—with a material and growing number of cases unresolved for years (see Table3.3)—is symptomatic of a broken system that is not fit for purpose with current levels of funding. These shortcomings have discouraged the use of the FOI system and have undermined the public's trust in government. It is incumbent upon the Parliament and the leadership of the Australian Public Service (APS) to reflect on this state of affairs, and to commit to taking the necessary action to resolve the situation.
5.10Despite the best intentions of the architects, proponents, and many of the operators of the FOI regime, its structure requires a re-think. The Three Commissioner Model of privacy, information, and FOI embedded within a shared office has not delivered as intended—at least not in terms of FOI functions. Instead, since the establishment of the OAIC in 2010, delays in finalising both FOI applications and FOI reviews have swelled.
5.11Australia's FOI regime must strike the right balance between ensuring the public's right to access information whilst also protecting the government's ability to obtain frank and fearless advice to maintain confidentiality where there are legitimate grounds. This is not happening. It is the committee's view that the legislation underpinning the FOI regime as well as its structure are no longer fit to deliver on the aspirations of the FOI Act—especially with existing resource levels. It is also the committee's view that there needs to be a recalibration of the culture across much of the APS so that transparency and accountability within the framework of the FOI regime are promoted.
5.12It is the committee's expectation that officials within the APS should approach FOI requests with an open, transparent, and pro-release mindset. Only that which is genuinely in the public interest to withhold should be kept from public scrutiny. The mindset needs to be one which is pro-disclosure (including on a proactive basis) unless there are legitimate substantial reasons recognised under the FOI regime not to disclose, rather than a mindset of first resisting disclosure and seeking to justify such non-disclosure through whatever means available. Given organisational culture is determined by its leadership, the committee considers that this is, in large part, a leadership issue—both within the APS, but also at a ministerial and broader parliamentary level. The necessary commitment is required across the board.
5.13The committee's recommendations with respect to these issues, as well as its views on other aspects of the FOI regime, are detailed below.
Reforming the FOI regime
5.14Evidence received during the course of this inquiry has clearly demonstrated that the current FOI regime is not functioning as intended. It is costly and cumbersome, and has resulted in years of delays before many FOI applications are finalised. These delays have undermined public trust in government and must urgently be reversed.
5.15In the committee's view, apart from the provision of increased funding, the greatest improvements in the efficiency of the FOI regime will result from a reconsideration of the intermediate review layer; currently the FOICommissioner embedded within the OAIC. At the moment, there are two processes of full merits review (putting aside the question of internal review within the original agency)—one at the OAIC and the other at the Administrative Appeals Tribunal (AAT). This is creating a bottleneck. The committee sees considerable merit in accelerating the process adopted at the OAIC such that it does not replicate the process within the AAT. However, the right balance must be struck so that reforms at the OAIC do not then simply push the problem onto the AAT (or its successor body which is currently the subject of consideration by the government). In order to achieve the best results, reform must consider the three elements of: process, resourcing, and culture. All these need to be correctly calibrated for the FOI system to be fit for purpose.
5.16It is more than a decade since the passage of the Australian Information Commissioner Act 2010 (AICAct). The chronic unacceptable backlog of ICreviews evidences that the current system is not working. The current FOI system is not fit for purpose.
5.17It is therefore time for a rethink. More specifically, it is time to reassess the process and structures in place. This is in the context where the workload and responsibilities in relation to the privacy related functions of the OAIC have grown to an extent that would not have been envisaged by the Parliament at the time of the passage of AIC Act. The growing responsibilities of the OAIC with respect to privacy related matters was made manifestly clear in the evidence provided by Ms Falk and the OAIC. As at 2023, those responsibilities are sufficient to justify the existence of a standalone agency just dealing with those important issues.
5.18An objective assessment of the current situation (where there is such a backlog of IC reviews within the OAIC) also begs the question as to whether there is any continuing material merit or utility in having two layers of full merits review. In the committee's view, there is little value to this structure. It is inefficient and leads to high costs and unjustifiably long delays. Instead, the committee recommends that the FOI Act be amended to require only a limited review function (ombudsman-like) at the intermediate level, with a full merits review reserved for the AAT (or its replacement, the Administrative Review Tribunal). Consequently, it is the committee's view that there should be no requirement to provide procedural fairness and formal decisions at the intermediate review stage. Based on evidence received by the committee, this would require legislative reform.
5.19Relatedly, evidence received by the committee indicates that internal reviews within decision-making agencies may delay the finalisation of FOI applications rather than offer meaningful recourse for applicants. As such, it is the committee's view that internal reviews be abolished, with unsatisfied applicants able to immediately progress matters to external review. Resources currently dedicated to internal review should be reallocated to lifting the quality and speed of initial decision making.
5.20In parallel, the AAT should continue to offer an avenue for full merits review, to which applicants may appeal at any stage during the review of an FOIapplication (not only after an unsuccessful IC review). The AAT should be resourced accordingly to enable it to fulfil this expanded role without leading to further delays and bottlenecks across the system.
5.21The committee recommends that the Australian government amends the Freedom of Information Act 1982 and the Australian Information Commissioner Act 2010 to provide that:
reviews internal to decision-making agencies be abolished and resources reallocated to primary decision-making;
intermediate reviews are not required to provide procedural fairness or formal reasons for a decision;
a full merits review process is only required at the level of the Administrative Appeals Tribunal (or its replacement); and
FOI applicants may appeal directly to the Administrative Appeals Tribunal (or its replacement) at any time after a primary decision for a full merits review of their claim without having to wait for a decision at the intermediate level.
5.22Moreover, it is the committee's view that further consideration should be given to the continuation of the Three Commissioner Model. With the recent appointment of a new FOI Commissioner and Privacy Commissioner and the term of the existing Information Commissioner coming to an end, there are legitimate questions to be asked in relation to whether or not the ThreeCommissioner Model is the optimal structure. Again, we refer to the growing responsibilities and obligations relating to the privacy function and the need to ensure that funding flows through to each of the functions in appropriate amounts.The evidence received by the committee in the course of this inquiry highlights the issues that arise under the Three Commissioner Model. Moreover, there is a clear need for the FOI function and system to be given the attention and focus that it deserves; especially, in light of the unacceptable backlogs. The issues which have been referred to in this report indicate that there is a strong case to separate the function from the OAIC.
5.23In the view of the committee, based on the evidence received during the course of this inquiry, there is benefit in separating the FOI function out of the OAIC. As such, and in accordance with the above recommendation that a streamlined intermediate review process be established, the committee recommends that the FOI Commissioner be relocated to the Office of the Commonwealth Ombudsman with the power to take on all Commonwealth intermediary FOI review and regulatory functions, similar to what is already in place in some states (see Chapter 2). Given the nature of the work of the CommonwealthOmbudsman, including its role with respect to review of FOI decisions at an ACT government level, the committee identifies potential synergies in the FOI Commissioner being co-located with and sharing services with the Office of the Commonwealth Ombudsman.We emphasise that the FOICommissioner and its supporting functions must be adequately resourced if it is to overcome the deficiencies of the OAIC.
5.24The committee recommends that the Australian government amends the Australian Information Commissioner Act 2010 to separate out the FOI review and regulatory functions from the Office of the Australian Information Commissioner and to relocate the FOI Commissioner to the Office of the Commonwealth Ombudsman.
5.25The committee recommends that the Australian government reallocates to the FOI Commissioner, newly located within the Office of the Commonwealth Ombudsman, all resources currently earmarked for the FOI functions of the Office of the Australian Information Commissioner and, going forward, provides the FOI Commissioner with adequate resources to perform its regulatory and review functions in a timely and efficient manner.
Other legislative reforms
5.26In parallel to the structural changes recommended above, the committee considers that other amendments are warranted to the legislation underpinning the FOI regime. Whilst, in the committee's view, the core tenets of the FOI Act remain relevant today, it has become outdated in some critical respects. These failings must be addressed if the FOI Act is to deliver a modern and efficient FOI regime that strikes a more appropriate balance between promoting transparency and accountability, whilst protecting the ability of the government to provide frank and fearless advice.
5.27In particular, amendments to the FOI Act are warranted that would impose a statutory timeframe for the finalisation of FOI reviews; ensure that the documents of a minister remain within the reach of FOI laws when there is a change of minister; and to require that documents released through FOI requests are published, as detailed below.
Statutory timeframes for FOI reviews
5.28Many of the submissions and witnesses in this inquiry called for statutory timeframes to be introduced for FOI reviews. The committee is persuaded of the merits of this approach and agrees that statutory timeframes should be introduced to ensure delays in finalising FOI reviews are never again allowed to grow to the length or volume that they have reached today. The committee also considers that the imposition of statutory timeframes for FOI reviews would help to ensure that adequate resources are allocated by the government of the day.
5.29Statutory timeframes for FOI reviews should include a requirement for review notifications to be made to decision-making agencies so that they can take appropriate action to resolve issues as efficiently as possible. The committee considers that it is unreasonable for there to be a delay of months before an agency is notified of a request by an applicant to have a decision reviewed. Delays in review notifications lead to unnecessary inefficiencies within decision-making agencies as FOI officers are forced to revisit their decisions in relation to applications they believed to have been finalised or new FOI officers are assigned and must start the work afresh.
5.30The committee has considered the various proposals put forward by relevant stakeholders with respect to timeframes.Whilst further consultation will be required, the timeline proposed by the Grata Fund in paragraph 3.56 is indicative of the timeframes which the committee considers reasonable. Consideration could be given to matters requiring additional time due to complexity and volume; however, departure from usual statutory timelines should be limited to exceptional circumstances.
5.31The committee acknowledges that statutory timeframes will have little impact unless and until the current review backlog has been significantly reduced and appropriate resourcing provided. As such, these changes should be implemented in conjunction with a plan to reduce the quantum of outstanding FOI reviews. Additionally, further consideration should be given to whether the streamlining of the intermediate review process as proposed by this committee should apply retrospectively to the current backlog through appropriate transition provisions. This would be a matter requiring detailed legal advice and policy consideration.
5.32The committee recommends that the Australian government:
consults with key stakeholders and implements appropriate statutory timeframes for FOI reviews (with the timeline proposed by the GrataFund as detailed in paragraph 3.56 of this report as an indicator), including consideration of provisions for extensions in exceptional circumstances due to the scale and complexity of an Information Commissioner review; and
amends the Freedom of Information Act1982 to impose statutory timeframes for the finalisation of FOI reviews. Statutory timeframes should expressly include the notification of reviews to decision-making agencies.
Documents of a minister
5.33The committee shares the view put forward by many witnesses and submitters to this inquiry that a change of minister should not prevent documents from being released where it would otherwise be in the public interest to do so, as outlined in Chapter 4. A change of minister should have no bearing on whether a document is released under the FOI regime. In fact, the circumstances relating to the change in a minister may be such as to trigger the making of FOI applications in the public interest. As such, it is the committee's recommendation that the FOI Act be amended to ensure such documents remain within the reach of FOI laws.
5.34The committee recommends that the Australian government amends subsection 4(1) of the Freedom of Information Act 1982 to ensure that a change in minister does not impede the right to access documents under the FOI system.
Publication of released information
5.35The committee notes that decision-making agencies are not required to directly publish information released under FOI and may instead merely provide details on how to obtain that information, for example by way of an email requesting the document. The committee considers it to be in the spirit of the FOI Act for information deemed to be in the public interest to be published directly by the decision-making agency and recommends therefore that the legislation be amended to reflect this requirement. However, the committee notes that in some circumstances this may be impractical due to technical impediments, such as file size or the need for specialist software to view the document, as noted in OAIC guidance (see Chapter 4).
Recommendation 7
5.36The committee recommends that the Australian government amends subsection 8D(3) of the Freedom of Information Act 1982 to require that decision-making agencies make directly available for public download, either from the disclosure log or another website, all information that is released through an FOI request, subject to recognised technical constraints and privacy concerns.
Deemed disclosures
5.37The committee considered arguments made in favour of a deemed disclosure regime to be persuasive (see Chapter 3). The committee was also sympathetic to assertions that such an approach would better represent the aspirations of the FOI Act than the approach currently in place, in which FOI applications may be refused merely because a decision-making agency has not considered the matter in time (a 'deemed refusal'). Indeed, if the Australian government elects not to implement the reforms recommended above or if these reforms do not produce the improvements intended, then the merits of a deemed disclosure regime should be seriously considered. However, given the breadth of changes recommended by the committee to the structure and the legislation underpinning the FOI regime, the committee considers that the introduction of a deemed disclosure regime should be considered as part of a potential second wave of reform that takes into account the (hopefully) positive improvements flowing from the recommendations contained in this report.
Culture
Transparency and accountability
5.38Earlier in this chapter, we discussed our expectations with respect to the pro-disclosure mindset required by the APS (with the support of ministers, and indeed all members of Parliament) in implementing the FOI system. If the culture is not right, it does not matter what the process or however much the funding, the FOI system will not operate as intended. The committee welcomes positive trends that were evident within the Department of Home Affairs (Home Affairs) and the Australian Broadcasting Corporation, both of which have seen marked improvements in the ways in which they handle FOI applications. These changes, particularly in the case of Home Affairs, appear to have significantly improved the finalisation of FOI applications within statutory timeframes.
5.39However, the committee believes that continued improvement of FOI processes, both within decision-making agencies and any regulatory body, will require transparency of key performance indicators. Whilst the FOIAct currently requires annual reporting on FOI matters and administration, the committee does not believe that these provisions adequately enable clear and fulsome analysis of the FOI system. Timely reporting on numbers of FOI applications and reviews, as well as the timeframes for decision making, numbers of decisions subject to review processes, numbers of deemed refusals, the age of cases, and cases resolved as a proportion of total applications on-hand, will provide clarity on the performance of the FOI system as a whole. In particular, the committee is firmly of the view that statistics such as those provided by the OAIC and contained in Table 3.3 of this report relating to backlogs of IC reviews should be easily accessible in annual reports so that stakeholders can see the success or otherwise of efforts to make the FOI system fit for purpose. Moreover, stakeholders should have the information required to assess the performance of individual agencies and departments in dealing with FOI applications.
5.40The committee considers that improved transparency will be a key enabler of accountability of FOI decision-making across the APS. Improved reporting will set a clear standard for agencies and will help ensure the objectives of the FOI regime are upheld.
5.41The committee recommends that the Australian government ensures that formal reporting obligations for both decision-making agencies and review bodies be expanded to ensure information is readily available regarding the timeliness and efficacy of FOI decision making.
Proactive disclosure
5.42The committee remains hopeful that, if its reforms outlined above are implemented, an increasingly pro-disclosure culture may take hold across the Commonwealth. In parallel, it is vital that the regulator—the newly-established Deputy Commonwealth Ombudsman (FOI)—works to instil a pro-disclosure culture in which a commitment to transparency and accountability is renewed at the highest levels of the APS.
5.43In the committee's view, Commonwealth agencies and departments can and should release more information proactively. Decision‑making agencies should consider proactively publishing information that is in the public interest to release—particularly documents that would be released under FOI. At a minimum, agencies should consider proactively releasing categories of information that have been subject to repeat successful FOI applications.
5.44The committee recognises the resource implications of agencies and departments making greater use of proactive disclosures, but considers that overall, this approach would be less resource-intensive than handling large volumes of FOI requests and appeals. The committee also considers proactive disclosure to be in keeping with the aspirations of the FOI Act.
Opportunities for the Strategic Assessment of the OAIC
5.45The committee notes that the changes proposed in this report will take some time to refine and to implement. As such, the committee welcomes the Australian government's commitment to continuing a Strategic Assessment of the OAIC, and the committee considers it necessary and timely.
5.46In the committee's view, the Strategic Assessment should consider the culture and leadership of the OAIC, and should examine the OAIC's approach to delivering on its statutory functions. The Strategic Assessment should explicitly explore opportunities to immediately address the unacceptable backlog of IC reviews. The committee believes the Strategic Assessment should consider the level of resourcing required to rectify current issues in the FOI system, and support FOI functions going forward. Experts conducting the Strategic Assessment should also make use of the evidence presented in this inquiry to inform their findings. The assessment should be made public.
5.47The committee recommends that the Strategic Assessment of the Office of the Australian Information Commissioner (OAIC) specifically considers:
operational and resourcing requirements needed to rapidly resolve the current backlog of FOI reviews;
the organisational culture of the OAIC, including its leadership, and its approach to the discharge of all its statutory functions;
whether resources can and should be reallocated internally to bolster the FOI functions of the OAIC;
ways to ensure the agency's reporting of FOI applications and reviews is transparent, fulsome, and explicitly accounts for the impact of deemed refusals on finalisation statistics;
the key performance indicators adopted to assess the performance of the FOI function of the OAIC so that there is a clear and transparent reporting of the backlog of substantive Information Commissioner review matters (as opposed to the clearance of less substantive matters, such as the rectification of deemed refusals by the relevant agency which requires minimal review);
measures to support the agency to better adapt to the changing nature and scale of its FOI workload; and
possible legislative changes that would improve the agency's functioning and improve outcomes for FOI applicants.
Further, the assessment should be made public.
5.48The committee recommends that the Australian government publishes the Strategic Assessment of the Office of the Australian Information Commissioner.
5.49On a related matter, the committee requested from the Attorney-General's Department minutes of a meeting between a senior officer of the department and Mr Hardiman (see Chapter 4). The committee understands that the reasons for Mr Hardiman's resignation may have been canvased during the meeting and considers that the minute of the meeting may therefore contain information relevant to this inquiry. The committee notes that the document in question was included in a series of documents that are subject to a Senate order, against which the inister representing the Attorney-General has made a Public Interest Immunity (PII) claim (see also Appendix 4). However, the Attorney‑General's Department was advised that the committee expects that a PII claim be made that responds to the specific circumstances of this request. The Attorney‑General has neither made such a claim, nor has the Attorney‑General provided the document in question. The committee considers the response by the Attorney-General to its request for the minute of the 10March 2023 meeting to be unsatisfactory. The committee is of the firm view that the document should be provided to the committee.
Consideration of a review of the FOI regime
5.50In the committee's view, many of the issues and gaps across the FOI regime have been well established, as laid out in the preceding chapters of this report and in extensive reviews of the system. As such, the committee does not consider that a further review is necessary to undertake the reforms recommended here. In the committee's view, what is needed is the prompt preparation of draft amendments to legislation giving effect to the recommendations contained in this report and publication of those amendments for public consultation.Once feedback is considered, the resultant amendments should then be introduced into parliament for enactment as soon as practical. The committee considers that a review into the operation of the FOIregime should be conducted and tabled in the Parliament within three years of these reforms being enacted.
5.51The committee recommends that amendments giving effect to the recommendations contained in this report should be enacted as soon as practical (following a consultation period) and that, within three years of implementing the reforms recommended above, the Australian government conducts and tables in the Parliament a review into the effectiveness of the operation of the FOI regime and proposes any further changes that may be warranted. The review should consider, among other issues:
whether reforms to the FOI regime have resulted in improved outcomes for applicants, in particular, whether the backlog of FOI reviews has been addressed and whether decision-making agencies are meeting statutory timeframes;
the merits of introducing or maintaining fees, costs, and charges for FOI applications and FOI reviews;
the merits of introducing a deemed disclosure regime;
whether decision-making agencies and the Commonwealth's FOI review functions are adequately resourced to meet their statutory responsibilities;
opportunities for increasing the use of proactive disclosures by decision-making agencies;
opportunities for increasing the pathways for individuals and their representatives to access personal information outside the FOI regime;
the merits of introducing a requirement for decision-making agencies to consider pro-actively releasing categories of information that have been subject to repeat successful FOI applications;
whether adequate provisions and guidance are in place to support vexatious applicant declarations;
potential reforms or initiatives to support smaller Commonwealth agencies to meet their FOI obligations; and
how best to ensure that the documents of a minister remain within reach of the FOI Act for a specified period after the relevant minister leaves or changes office.
Other matters
Resourcing
5.52It is clear to the committee that the government's FOI functions have suffered from underfunding across the APS. If legislative reform is to be undertaken and the FOI regime restructured, as proposed here, existing resources will go further. However, that will not deal with the chronic backlog of matters which need to be finalised so that the system is placed on an even keel.
5.53The ability of decision-making agencies to meet statutory timeframes will serve as one indicator of whether an agency's FOI functions have been adequately resourced. The introduction of statutory timeframes for reviews of FOI applications, as recommended above, would provide a similar indicator for the Commonwealth's FOI review and regulatory functions. The committee considers that the Strategic Assessment of the OAIC should consider the OAIC's resourcing, including whether additional resources are needed, and whether existing resources can be reallocated internally, to bring down the backlog of reviews to a manageable level, as recommended above. It is also likely that the AAT will require additional resources if it is to become the only layer of full merits review, as is also recommended above.
5.54The committee recommends that the Strategic Assessment of the Office of the Australian Information Commissioner considers what additional funding is required to clear the chronic backlog of Information Commissioner review decisions and the funding reasonably required for the operation of the FOI system on an efficient and effective steady state basis.
Fees, costs, and charges
5.55The committee notes the potential for fees and charges to deter vexatious applicants and to reduce the number of applications and reviews. However, the committee considers that fees and charges serve to disincentivise engagement with the FOI system and therefore run counter to the spirit of the FOI Act. It is also the committee's view that, on principle, people should not be charged for access to personal information held by government. Further, the management of fees and waivers of fees would be resource intensive and may therefore increase demands on the Commonwealth for further resources.
5.56The committee does not consider that applying charges to Commonwealth agencies for failing to meet statutory timeframes would provide a sufficient incentive to substantially improve outcomes for FOI applicants.
Personal information
5.57The committee welcomes steps taken by some decision-making agencies to make personal information available outside the FOI system, for example through the Privacy Act 1988. This approach has the potential to reduce demands on the FOI regime and may provide better outcomes for applicants. Nevertheless, the committee considers it necessary that applicants who seek personal information from the Commonwealth can still avail themselves of the FOI system whether or not they are satisfied with the outcome of using alternative pathways to access their information.
5.58The committee recommends that there be a whole of government campaign to encourage decision-making agencies to explore opportunities to create pathways to release personal information directly to the individuals to which the information pertains without requiring applicants to use the FOI regime.
5.59The committee recommends that the Office of the Australian Information Commissioner prioritises efforts to develop guidance and build the capacity of decision-making agencies to strengthen pathways for people accessing personal information outside the FOI regime.
Vexatious applicant declarations
5.60To ensure the effective use of Commonwealth resources, the committee considers it necessary for decision-making agencies to have fair and efficient processes for obtaining vexatious applicants declarations. The committee notes that the OAIC has developed guidance on this matter. However, some evidence before the committee suggested that this guidance is lengthy and complex, and that decision-making agencies may face difficulties using provisions in the legislation that are designed to protect the Commonwealth from vexatious applicants. This appears to be particularly problematic for smaller agencies, which may lack the resources and experience to make a claim for a vexatious applicant declaration. Again, the committee identifies an opportunity for reform to promote greater efficiency in this regard. The committee refers to the discussion at paragraph 4.82 and the recommendation contained in the HawkeReview for a potential path forward.
5.61The committee recommends that the Office of the Australian Information Commissioner develops streamlined guidance and conducts training for decision-making agencies on applications for vexatious applicant declarations. In addition, if necessary to streamline processes and promote efficiency, consideration should be given to making amendments to the relevant legislation.
Senator Paul Scarr
Chair
Liberal Senator for Queensland