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In this ICON alert:

  • Message from Acting FOI Commissioner, Toni Pirani
  • Help inform our future events: take our survey
  • Quick reference: upcoming events and deadlines
  • Agency Spotlight: Information access at the DVA
  • Updated IC review procedure directions – consultation extended to 30 June   
  • Recent IC review decisions
  • FOI Guidelines – revised part 5 for consultation
  • FOI Statistics     
    o   FOI Stats database: upgrade of security and passwords           
    o   FOI Stats information session – 6 July 2023
    o   Closing date for lodgement of statistical returns
    o   Reporting ministers' statistics
  • 5-yearly review of the Information Publication Scheme     
  • Extension of time applications
  • OAIC engagements
Headshot of Toni Pirani. Toni is wearing a black jacket and a necklace. She has long hair, which is worn down.

A message from Acting FOI Commissioner
Toni Pirani

I am very happy to have been appointed as the acting Freedom of Information (FOI) Commissioner while the government conducts a merit selection process to fill the role. I look forward to working with all of you over the coming months.

I have a long association with FOI throughout my 35 years in the APS. In 1990s I was the FOI Contact Officer for the Aboriginal and Torres Strait Islander Commission, and I also had FOI roles in the Department of Health, the Civil Aviation Safety Authority, and the Migration Review Tribunal. In 2012-13 I spent a year at the OAIC working primarily on Information Commissioner Reviews. This included my first time as acting FOI Commissioner while Commissioner Dr James Popple was on leave.

I have been fortunate to commence in the role at a very interesting time. In my first 3 weeks I have attended Senate Estimates, a meeting of the SES FOI leadership group and a meeting of the Association of Information Access Commissioners. These meetings have given me a range of insights into the challenges we are all facing as we promote the public’s right to access government information while balancing a range of important interests and considerations set out in the legislation.

My early impressions are that our FOI system is experiencing some enduring challenges around resourcing, vulnerable and traumatised applicants, and the accelerating pace of document creation. As the stewards of the FOI system, it is up to us, working together, to do what we can to further the objects of the FOI Act and particularly “facilitate and promote public access to information promptly and at the lowest reasonable cost” (s 3(4) of the FOI Act).

I have been surprised to learn that one of the present challenges for the system relates to providing applicants with access to their own personal information, which should be one of the more straightforward aspects of FOI practice. In this ICON alert the Department of Veterans’ Affairs shares the approach it takes to address this challenge.

I have also heard about the increasingly difficult client behaviours experienced by many agencies. We are all entitled to be safe when at work and this includes not being subjected to harassment. However, I also believe that we cannot assume that we are being harassed when someone wants to ask some difficult or robust questions.

Many of our FOI applicants are seeking access to their own personal information or information that is personally important to them. They may be vulnerable or traumatised. Previous experience dealing with governments and institutions may have caused frustration and led them to be unable to trust that they will be treated fairly. Done well, FOI can play an important role in re-building trust and providing reassurance in the machinery of government. Done poorly, FOI can increase the levels of distrust, frustration, trauma and difficult behaviours.

Over the past 10 years I have spent much of my time working in or with royal commissions. Often when a royal commission is established, it is because there is a lack of public trust in a particular institution or the operation of a particular area. Royal commissions have enjoyed a high level of public trust and confidence in their work. One way that royal commissions quickly build this trust and confidence is by engaging directly on a personal level with the people most impacted.

I would like to see all of us, in our roles in the FOI system, enjoy a similar level of public trust in our work. To do that we need to engage with applicants constructively, listen to their concerns, process matters pragmatically according to the legislation without being overly technical, and remain focussed on the objects of the legislation. To do this well, we may need to think about how we can work together to upskill ourselves in trauma-informed approaches to our work. If this is something your agency would be interested in, please contact [email protected].

Help inform our future events: take our survey

The OAIC would like to gauge your interest in future ICON forums. If you are working in an FOI or information access role, please complete this survey* to give us feedback on what topics you would like to hear about or discuss, along with your preferences for virtual, in-person or hybrid events. We also welcome your suggestions for future ICON newsletters: just email [email protected] with the subject line 'ICON newsletter items'.

*This anonymised survey is created in Qualtrics. Information about Qualtrics and data protection and privacy is available here.The OAIC privacy policy is here.
Survey

Quick reference: upcoming events and deadlines

Events

  • OAIC FOI Stats virtual information session for agencies and users of the FOI Stats portal: 6 July 2023
  • OAIC post-consultation workshop for agencies that made a submission on Information Commissioner review procedure directions: Wednesday 12 July

Consultations

Closing dates for lodgement of statistical returns
  • FOI Stats Quarter 4 returns will close on 21 July 
  • End of Year Annual returns will close on 31 July
Read on for more about all of the above events, deadlines and consultations

Agency Spotlight: Information access at the DVA

Susan Pullar, Acting Assistant Secretary, Client Access and Rehabilitation Branch, Department of Veterans’ Affairs recently met (virtually) with members of the OAIC's  FOI Branch to discuss some of the new initiatives DVA have implemented around information access, including in response to recommendations from the current Royal Commission. Here are some of Susan’s key messages and takeaways:

How has DVA responded to access requests more efficiently and effectively? What initiatives have DVA considered and implemented?

The focus has been on communication and training. As part of our response to recommendations from the interim report of the Royal Commission into Defence and Veteran Suicide, we developed and promoted internally and externally an overarching Information Release Policy to clearly articulate our position.

We updated our website to promote administrative access as our preferred method of release and to provide clearer information and guidance around administrative access and FOI. We have also developed admin access guidelines which have been distributed department-wide. We encourage information release directly from business areas (where relevant), removing unnecessary steps and delays. Training has been delivered on information release to over 2300 staff members with the view of building competence and confidence in information release directly from business areas to improve client the experience.

How does your team assess and handle a request for an administrative access compared to a formal FOI request? Are there any key  differences between the two pathways, such as the types of information that are handled?

The requests are fundamentally handled the same way, we acknowledge a request for Administrative Access within 14 days and aim to have them finalised within 30 days. The key difference is that any redactions made in an administrative release are not coded with an FOI exemption code, which simplifies the task for the processing officer and in many cases, speeds up the release for applicants. In February 2022 we first established our Information Access Unit (IAU) which brought together the management of all FOI applications and centralised key forms of administrative release. This in itself brings about improvements in that it creates clearer pathways for clients, increases consistency in handling, and in time we hope will lead to further improvements that we hope will result in shorter handling times. A significant proportion of requests (88% for the first quarter of 2023) are for personal information.

Do you have lessons or tips for other agencies on how to establish a dedicated information access unit/process?

As I mentioned above, DVA established the IAU in February 2022. The IAU processes information requests under multiple access mechanisms including FOI, Admin Access, The Privacy Act and a host of other legislative mechanisms. My top tip for setting up an IAU would be to examine your workload carefully and mathematically staff your Unit accordingly! I think cross-training staff is really important to really maximise the benefits of having one unit so that peaks in a particular caseload can be better facilitated as well as giving staff greater diversity. I also think that the development of the DVA Information Release Policy has been a  really positive development and has assisted in our clarity and transparency both internally and externally.   

What training do you provide staff in engaging with the public?

Our staff are given one-on-one, on the job training with a team leader or buddy in all aspects of the Information Access Officer role. This includes the new staff member shadowing phone calls with applicants to gain an understanding of how to approach particular conversations. We are also fortunate to have a number of staff in the IAU who have previous experience in client facing roles such as our Veterans Access Network (our general enquiries call centre and client facing service area). Our staff have also undertaken initial Trauma Informed training and will soon receive additional Trauma Informed Care training which will be rolled out in coming months.

What are your top 5 tips for information access practitioners?        

  • Engage early and often with your applicants to build rapport and a productive working relationship
  • Don’t delay! Start your information requests as soon as practically possible to minimise the risk of running overtime
  • Where appropriate, ask your applicant to switch their application from FOI to Admin Access
  • Seek applicant extensions early in the process if you identify that the request may run overtime
  • Be kind to yourself, everybody makes the occasional mistake. Accept it, learn from it and move on

Updated IC review procedure directions –  consultation extended to 30 June

The Australian Information Commissioner may give written directions under s 55(2)(e)(ii) of the FOI Act in relation to procedures to be followed in Information Commissioner (IC) reviews. As discussed in the last ICON alert, the OAIC has revised the 2 existing procedure directions (one for agencies and ministers, and one for IC review applicants). We are seeking feedback on the 2 draft IC Review Procedure Directions. The consultation period has been extended and submissions are now due on 30 June 2023. Agencies that provide a submission, and wish to be provided further context to their submissions, will be invited to attend a post-consultation workshop on 12 July 2023.

The OAIC will consider feedback provided by agencies and other stakeholders to the draft procedure directions. Part 10 of the FOI Guidelines (Review by the Information Commissioner) will then be updated to reflect the new Directions when they are issued.

Recent IC review decisions

Recent decisions include:

  • 'ADP' and Civil Aviation Safety Authority (Freedom of information) [2023] AICmr 48 (15 June 2023)
  • Joshua Badge and Department of Health and Aged Care (Freedom of information) [2023] AICmr 46 (13 June 2023)
  • Diarmuid Hannigan and Department of Home Affairs (Freedom of information) [2023] AICmr 45 (7 June 2023)
  • 'ADN' and the Australian Taxation Office (Freedom of information) [2023] AICmr 44 (5 June 2023)
  • 'ADM' and Services Australia (No. 6) (Freedom of information) [2023] AICmr 43 (19 May 2023)
  • 'ADM' and Services Australia (No. 5) (Freedom of information) [2023] AICmr 42 (19 May 2023)
  • 'ADM' and Services Australia (No. 4) (Freedom of information) [2023] AICmr 41 (19 May 2023)
  • 'ADM' and Services Australia (No. 3) (Freedom of information) [2023] AICmr 40 (19 May 2023)
  • 'ADM' and Services Australia (No. 2) (Freedom of information) [2023] AICmr 39 (19 May 2023)
  • 'ADM' and Services Australia (Freedom of information) [2023] AICmr 38 (19 May 2023)
All IC review decisions are published on the AustLII website as part of the Australian Information Commissioner (AICmr) series
Visit AustLII

FOI Guidelines – part 5 for consultation

The OAIC continues to regularly develop and review guidance for agencies and FOI applicants. Over the coming weeks, the OAIC will publish the revised Part 13 FOI Guidelines (Information Publication Scheme) following an external consultation process.

The OAIC has revised Part 5 of the FOI Guidelines (Exemptions) and a consultation draft is now available. We are seeking submissions by Friday 14 July 2023. The purpose of the Part 5 guidelines is to provide detailed information on how to interpret the FOI Act dealing with exempt documents under Part IV. The proposed revisions to the Guidelines aim to improve readability and reflect recent Administrative Appeals Tribunal (AAT) and Information Commissioner review (IC review) decisions. Key changes include updates to guidance on the application of sections 33, 34, 42 and 45. The updates to the guidelines also include an increased emphasis on agencies’ and ministers’ discretion to provide access to a document where the law permits, even if the document is exempt under Part IV of the FOI Act.

FOI Statistics

The Freedom of Information Act 1982 (Cth) (FOI Act) requires all agencies subject to the FOI Act to provide statistical information to the Office of the Australian Information Commissioner (OAIC) for inclusion in the Annual Report. Agencies subject to the FOI Act must provide quarterly and annual statistical returns within the statutory prescribed timeframes set out in the Freedom of Information (Prescribed Authorities, Principal Offices and Annual Report) Regulations 2017.  FOI Statistical returns are submitted via the FOI Statistics database.

Changes to the FOI Stats database
The FOI Statistics Database will undergo software upgrades over the coming weeks.  The OAIC anticipate there will be minimal disruption to users, however, users will be required to make changes to update existing passwords, noting password criteria will be increased to 14 characters with changes to the special character requirements. Further information will follow in the coming weeks via email from the FOI Statistics database to registered user accounts. If you have any questions, please reach out to the OAIC FOI Statistics team via [email protected] .

FOI Stats information session – 6 July 2023
The OIAC will hold a virtual information session on 6 July. The session will be an opportunity for agencies and users of the FOI Stats portal to discuss or raise any questions about end-of-year reporting. If you would like to attend it, please send an email to [email protected] – with the subject heading FOI Stats information session. An invitation will be sent to interested staff.

Closing dates for lodgement of statistical returns
Agencies are reminded that FOI Stats Quarter 4 returns will close on 21 July 2023.  End of Year Annual returns will close on 31 July 2023. These reporting deadlines are established by Regulation 5 of the Freedom of Information (Prescribed Authorities, Principal Officers and Annual Report) Regulations 2017, so extensions cannot be granted.

Reporting ministers’ statistics
The OAIC has received queries from agencies about how ministers’ FOI statistics are reported following a change of government. While the OAIC is actively considering these issues, agencies should continue to submit FOI statistical reports based on the OAIC guidance as set out in the  FOI Stats guide. The FOI statistics database provides a separate ‘Comments’ section where relevant commentary can also be included. This section is published, along with the raw data provided, on the FOI Statistics page on data.gov.au.

Five-yearly review of the Information Publication Scheme

In July 2023, the OAIC will commence working with agencies to review compliance of agencies' obligations under the Information Publication Scheme (IPS). The review will consist of a survey assisting agencies in meeting their statutory obligations under the FOI Act. The survey process is intended to be finalised by December 2023 and the findings and overall evaluation published thereafter. The OAIC will write to agencies seeking confirmation and contact details of relevant FOI contact officers, who will be asked to assist the Information Commissioner with this review. Details of the 2018 IPS Survey  and 2012 IPS Survey. are available on our website.

Extension of time applications

Guidance about how to apply for an extension of time (EOT) to process an FOI request is available on the OAIC website. In making EOT applications, please remember:

  • Applications should be lodged via the online EOT smartform and should include the contact details of the relevant officer. This will assist us in considering the application and seeking clarification if and where required, as quickly as possible.
  • EOT applications are normally shared with applicants without the agency contact officer’s details. If we do receive a request that would involve sharing the agency contact officer’s details, we will contact your agency first.  
  • An application for an EOT under s 15AB may only be made in relation to a specific FOI request. The complexity or volume described in a s 15AB application relates to the particular request for which an extension of time is sought. It does not relate to the complexity and volume of the aggregated FOI caseload of the agency or minister. The discretion in s 15AB cannot be exercised to provide a ‘blanket’ extension of time to a cohort of cases; each request needs to be made and considered on its individual merits.
  • As outlined in the FOI Guidelines at [3.155], staff absences due to public holidays or agency shutdown periods may be relevant to whether an extension should be granted, if the particular staff members have skills or knowledge that may be required to process the request in the normal statutory timeframe. However, a lack of staff because of inadequate allocation of resources to FOI processing or failure to assign additional temporary resources to FOI processing at peak times will not normally justify an extension in the absence of other extenuating circumstances.

OAIC engagements 

  • 19-21 June: The 14th Edition of the International Conference of Information Commissioners are meeting in Manila, Philippines.

Further details of recent events are listed on our website.
 
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