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In this ICON Alert:
- Message from Acting FOI Commissioner, Toni Pirani
- Extension of time applications: extensions of time over the holiday period
- Access under the FOI Act and Administrative Access
- FOI Guidelines
- Submissions to consultation on Parts 5 and 6
- Updated combined version
- Information Publication Scheme (IPS) Review: Update
- IC review update
- Notification of IC reviews
- Section 55G – Procedure in IC review
- Recent Information Commissioner Review decisions
- FOI investigation outcomes
- Reminders:
- FOI Statistics: Reminder for January returns
- International Access to Information Day
- Recent events
- Information Contact Officer Network (ICON)
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Message from Acting FOI Commissioner, Toni Pirani
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In this final ICON for 2023 we have a bumper edition, but I am most excited to share that from 19 February 2024 Ms Elizabeth Tydd will take up the role of FOI Commissioner for a 5-year term. For the first time in many years the OAIC will return to having 3 Commissioners. I will be continuing in the role until 18 February 2024.
A big thank you to everyone who participated in the Information Publication Scheme (IPS) Review. There is more information below about how the review is progressing but in short, I look forward to the report being finalised before the end of the year.
In the past few months we have been closely focusing on our legacy caseload, in particular 2019 matters. As many of these IC reviews remain in the case management phase of our process, you may have noticed that we are taking a more robust approach to the exercise of our powers. By setting hard deadlines and issuing formal notices we aim to ensure these matters progress as quickly as possible. We appreciate your engagement on these matters and compliance with our deadlines.
In addition to the legacy matters we are also progressing our priority cohorts namely:
- Access grant decisions
- Where the only exemption claimed is s 38 (secrecy provisions)
- Decisions of Ministers
- Matters involving only searches, practical refusals or charges.
I would like to take this opportunity to thank all of you for your hard work during 2023 and to wish you a happy and safe holiday season. I look forward to working with you again for at least a small part of next year. |
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Extension of time applications: extensions of time over the holiday period
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Many agencies close down over the Christmas holiday period, which often means there may be limited staff available to process FOI requests. This can impact on an agency’s ability to make decisions on FOI requests within statutory timeframes, particularly if a request falls due between Christmas and New Year. The OAIC guidance on public holidays and agency shut-down periods — calculating timeframes under the Freedom of Information Act 1982 contains more information.
Agencies should start planning early to ensure they are able to comply with statutory timeframes. Some options for agencies to consider are:
- Remember that unless consultation with a foreign government or consultation under ss 26, 27 or 27A is required, requests received between 23 November 2023 and 2 December 2023 will fall due before staff return from leave on 2 January 2024.
- Consider seeking the FOI applicant’s agreement to extend the time to decide their request until the new year (an agreement under s 15AA of the FOI Act). It may be more efficient for agencies to include a request for a s 15AA agreement in the applicant’s acknowledgement email.
- Agencies must notify the OAIC as soon as practicable of s 15AA agreements. Agencies should use the extension of time (EOT) smartform to notify the OAIC of s 15AA agreements, and/or to apply for an extensions of time under ss 15AB, 15AC or 54D. Please plan ahead and seek extensions ahead of time, particularly as the OAIC is unable to grant ss 15AC or 54D extensions retrospectively (i.e., a decision to grant an extension of time needs to be made before the agency notifies the applicant of its decision for the extension to be valid. This is discussed further below).
- Please lodge extension of time applications as early as possible to allow time for a decision on the application to be processed prior the agency’s proposed extended due date.
- If an agency does not provide adequate reasons to support their extension of time application, an extension may not be granted: refer to the guidance extension of time for processing requests for more information.
- Applications for extensions of time may be shared with the FOI applicant before a decision is made on the application or may be provided at the applicant’s request.
- The OAIC is unable to grant ss 15AC or 54D extensions of time retrospectively, so please plan ahead and seek an extension early to allow us time to issue a decision before the agency’s planned decision date.
Further guidance is available in the FOI Essentials Toolkit for Australian Government agencies and ministers. |
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Access under the FOI Act and under Administrative Access
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It is open to agencies to consider administrative access as an option to release information outside of the Freedom of Information Act 1982 (FOI Act). The OAIC guidance on Administrative Access contains detailed information around when administrative access may be utilised, including Privacy Act 1988 (Privacy Act) considerations.
It is important to remember:
- If it is unclear whether a request is made under FOI, administrative access or another type of access request such as under the Privacy Act, the agency retains an obligation to assist the applicant to make a valid FOI request or confirm in writing that the request is an administrative request or application under the Privacy Act.
- If an FOI applicant agrees to have their request processed administratively, the withdrawal of their FOI request must be confirmed in writing, otherwise the agency’s obligations under the FOI Act continue.
- The Information Commissioner recommends that requests for information and documents that are handled under administrative arrangements be processed within 30 days.
- If an administrative access request cannot be processed within 30 days, the applicant should be advised of this and given the option to lodge an FOI request or make an application under the Privacy Act.
- Where relevant, agencies should be mindful of the requirements of APP12 of the Australian Privacy Principles, which include that a decision to refuse access to documents must be notified in writing and include the reasons for refusal and the applicant’s right to complain.
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Submissions to consultation on Parts 5 and 6
The OAIC recently published submissions from stakeholders relating to proposed updates to Part 5 (exemptions) and Part 6 (conditional exemptions) of the FOI Guidelines. The proposed updates relate to content, practical implications, readability and accessibility. The OAIC is now considering the feedback from these submissions and will publish new versions when the final content is settled.
Updated Combined version
The OAIC has updated and published an updated combined version of the FOI Guidelines as at November 2023. You can download a copy here: Freedom of information guidelines. |
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Information Publication Scheme (IPS) Review: Update
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Section 9 of the FOI Act requires Australian government agencies, in conjunction with the Australian Information Commissioner, to complete a review of their IPS every 5 years.
The OAIC and ORIMA Research recently completed the field work component of the 2023 Review of the Information Publication Scheme (IPS) Survey, in conjunction with Australian Government agencies subject to the FOI Act.
It was pleasing to see the rate of participation increase with 93% of agencies completing the survey; up from 82% in 2018 and 78% in 2012. Thank you to everyone for their assistance in this project. Compliance with the IPS is an ongoing statutory responsibility for agencies subject to the Freedom of Information Act 1982. The survey’s results will assist in identifying improvements and will further promote the proactive publication of Australian Government information. The OAIC will publish a report on the findings into the IPS review later this year.
The OAIC encourage agencies to review the revised Part 13 FOI Guidelines: Information Publication Scheme (v 1.5; July 2023). |
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Notification of IC reviews
In recognition of increased public holidays and staff leave during December and January, the OAIC will provide extended timeframes to agencies and Ministers for responses to 54Z notices commencing IC review that are issued throughout December 2023.
Please note the OAIC will not always notify an agency that an Information Commissioner (IC) review application has been received. This may occur where the Information Commissioner has exercised the discretion not to undertake an IC review under s 54W(a) of the FOI Act (including where the matter is lacking in substance, the IC review applicant has failed to co-operate without reasonable excuse or the OAIC cannot contact the applicant). Unless the OAIC first undertakes preliminary inquiries with the agency, the agency will only be notified of the application once it has been finalised under s 54W(a), in accordance with s 54X of the FOI Act.
IC review applications that are invalid (for example, that do not include a copy of the decision notice) will be closed without any notification to the agency (following the OAIC’s attempts to assist the applicant make a valid application).
Section 55G Procedure in IC review—revocation or variation of an access refusal decision
Section 55G of the FOI Act provides an agency or minister may vary an access refusal decision at any time during an IC review (including charges decisions or amendment applications under s 48). The revised decision must, in effect be to the benefit of the applicant, and seek to provide more access to the FOI Applicant, as is the intent of s 55G.
The agency or minister must notify both the applicant and the OAIC if they make a revised s 55G decision during an IC review.
Making a revised decision under s 55G does not close the IC review; the revised decision becomes the decision under review. After a s 55G decision, if the agency or minister (respondent) no longer maintains an exemption claim(s), the respondent can advise the OAIC the exemption is no longer maintained, and the review can proceed to a s 55K decision.
Please note: Releasing documents administratively (outside of a s 55G decision) which are subject to an IC review does not conclude the IC review; administrative release has no legal effect on the IC reviewable decision. The OAIC’s preference during IC review is agencies and ministers use the s 55G power to make a revised decision, rather than releasing documents administratively.
Recent Information Commissioner review decisions
Information Commissioner (IC) review decisions are published on AustLII. Recent decisions include:
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Freedom of information investigation outcomes
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The OAIC has updated its Freedom of Information Investigation Outcomes summary table to incorporate outcomes and recommendations from recent FOI complaints investigations. We encourage agencies to review and consider these outcomes and recommendations to improve their information access operations. |
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FOI Statistics quarterly returns due 21 January
A reminder that FOI Statistics quarter 2 returns are due to be uploaded to the FOIStats database by 21 January 2024. Agencies should start to prepare now because this period may fall due while staff are on leave or during agency stand down times.
Please contact [email protected] if you have any questions about lodging quarterly returns and see the FOIStats guide.
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International Access to Information Day videos
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On 28 September 2023, we joined members of the United Nations and Australian states and territories to mark International Access to Information Day (IAID) 2023.
This year’s UNESCO theme for the day – the importance of the online space for access to information – was a reminder to all Australian government agencies and ministers to consider how they uphold citizens’ right to access information in the online space.
To recognise the special day, we shared 3 video interviews with Australian Information Commissioner and Privacy Commissioner Angelene Falk, Acting Freedom of Information Commissioner Toni Pirani, and Australian Public Service Commissioner Gordon de Brouwer, where they discussed transparency and freedom of information. |
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Acting Freedom of Information Commissioner Toni Pirani discusses The Information Publications Scheme and the Freedom of Information Disclosure Log, and reflects on her own time in the Australian Public Service, noting the changes in the FOI landscape over the past 26 years. |
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For more details on what’s been happening, refer to our Upcoming and past events page
November Overview
3 November – Association of Information Access Commissioners (AIAC) meeting
The AIAC comprises information access authorities from across Australia and New Zealand who administer freedom of information legislation. AIAC members meet twice a year to share knowledge and upcoming projects. The November AIAC meeting was hosted by the Office of the Information Commissioner Western Australia. Read the meeting communique.
2 November – FOI in WA Conference
Australian Information Commissioner and Privacy Commissioner Angelene Falk spoke on the panel 'Being an open government in the digital age – a cross-jurisdictional discussion' alongside NSW Information Commissioner Elizabeth Tydd, New Zealand Chief Ombudsman Peter Boshier and Commonwealth Ombudsman Iain Anderson. The conference was organised by the Office of the Information Commissioner Western Australia.
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Information Contact Officer Network (ICON)
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In 2024, the OAIC will be scheduling more ICON webinars and micro-sessions for agencies.
We would appreciate your input to these sessions and encourage you to complete an online survey to give us feedback on these suggested topics:
- Agency obligations under the FOI Act (Micro and small agencies)
- How to make extension of time applications
- Publication under the FOI Act: the IPS and disclosure log
- FOI Statistics
- Guidance update: Guidelines, IC reviews and Investigations
The survey also includes a range of other questions to help us plan helpful sessions for the year - let us know your preferences. |
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