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In this ICON Alert:
- Message from FOI Commissioner Elizabeth Tydd
- FOI investigations update
- IC review focus areas
- IC review update: Requests for documents and information
- Recent IC review decisions involving s 38
- Extension of time guidance
- How to provide feedback
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Message from FOI Commissioner Elizabeth Tydd
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I am delighted to engage with you so early in my term to build a positive and productive regulatory relationship, one that is informed by mutual duties and expectations. Essential to me succeeding in this important role is understanding your perspectives, environment and its challenges, with a view to building capacity and promoting ease of compliance.
This means the OAIC and I, as the Freedom of Information Commissioner, must be responsive and importantly, proactive.
My early observations of the OAIC confirm my expectations of highly committed staff with established expertise. Working with you as practitioners we can more effectively uphold our positive duty to actively advocate for accountability and transparency as cornerstones of our prized participative democracy. We have work to do to achieve this noble and complex duty – that work requires active leadership, sound practices and processes and ongoing development of expertise.
I have written to agency heads to establish a collaborative approach to rebuilding trust in the public’s right to know, and to take that forward to fortify trust in our democratic process and institutions.
Effective application of all of the tools available, together with a demonstrable commitment to open government, are vital to our success. I have identified operational and cultural opportunities for change to hasten progress in response to the current environment. These preliminary views will be informed by your feedback and we will provide links in this newsletter for that purpose.
Mechanisms that enhance engagement between us are a key priority for me. With this in mind I intend to better identify and address your needs through the use of surveys and data collection in the coming months. I can only be effective with your input to regulatory priorities and guidance – this will be developed and applied according to risk. Your commitment to this engagement will better serve our shared agenda.
Some of my early observations of the mechanisms available to us to be prioritised and promoted include:
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Recognition that FOI Act compliance is a core mandated statutory function to be exercised with care and diligence (Public Governance Performance and Accountability Act 2013 s 25)
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Activation of and ongoing commitment to the Information Publication Scheme (Freedom of Information Act 1982 (FOI Act s 9)
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Responsiveness to both applicants and the OAIC (FOI Act ss 15 and 55DA)
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Respect for and adherence to the extant authorisation of FOI officers to make FOI decisions promptly and independently (FOI Act ss 3 and 23)
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Active promotion of the right to access information to increase public participation and better-informed decision-making; increasing scrutiny, discussion, comment, and review of the Government's activities; increasing recognition that information held by the Government is to be managed for public purposes and is a national resource (FOI Act s 3).
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Promotion of Australian Public Sector Values, in particular accountability, together with the duties of legal practitioners to determinative bodies such as the OAIC, analogous to their duty to the Court (Public Service Act 1999 s 10)
Our active and effective engagement is required to achieve these outcomes. I look forward to working with you to realise the objects of the Freedom of Information Act 1982 and enlivening the democratic values that underpin the right to access to information.
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Freedom of Information investigations and complaints update
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Resolving FOI complaints is a key regulatory focus area for the FOI Commissioner and the OAIC, including FOI complaints received by the OAIC in 2021 and 2022.
Meeting timeframes for requesting information
The OAIC may request information to determine whether or not to investigate a complaint (s 72) or if it is relevant to the investigation (s 76) within a specific timeframe.
The procedures and timeframes have been determined to promote the objects of the FOI Act and reflect the circumstances of the relevant matter. Therefore, requests for extensions of time will only be granted in exceptional circumstances. Further information about the OAIC’s approach to requests for documents and information is set out below.
Process for investigation outcomes (notice on completion)
Once an investigation has been completed, the OAIC will provide the agency a ‘notice on completion’ setting out the investigation results, recommendations and/or suggestions (if any). Where recommendations or suggestions are included in the notice, the notice will generally be addressed to the agency head or senior official. A copy of the notice will also be provided to the complainant.
The OAIC expects agencies to advise the OAIC of whether it accepts the recommendations or suggestions within the time specified in the notice. If the Commissioner is not satisfied the agency has taken adequate and appropriate action to implement the formal recommendation(s), the Commissioner may issue a written ‘implementation notice’ requiring the agency to provide within a specified time particulars of any action the agency will take to implement the Information Commissioner’s recommendations (s 89). The Commissioner will take agency comments into account in deciding whether to take further action (s 89).
Recent investigation outcomes
The OAIC has updated its Freedom of Information Investigation Outcomes summary table to incorporate outcomes and recommendations from recent FOI complaints investigations.
The FOI Commissioner has made recommendations and suggestions to improve agency practices, which include:
- amending/updating FOI policies and procedures to better reflect the discretionary nature of the charges regime and use of charges calculator and publishing information on the Information Publication Scheme (IPS)
- providing training to staff and assessments of subsequent decisions to ensure that the training has been effective
- monitoring of compliance with statutory timeframes through the use of weekly reports
- engagement with the applicant to communicate delay and/or to provide assistance to promote the objects of the FOI Act.
We encourage agencies to review and consider these outcomes and recommendations to improve their information access operations.
Further information about investigations and complaints is set out in Part VIIB of the FOI Act and in Part 11 of the FOI Guidelines.
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IC review update: Focus areas and requests for documents and information
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The OAIC has been focusing on IC review applications:
- received in 2019 and 2020
- seeking review of deemed access refusals (where an agency has not provided a decision within the statutory processing timeframe)
- where the sole access refusal reason relates to:
- adequacy of searches (s 24A)
- imposition of a charge (s 29)
- practical refusal (s 24)
- secrecy provision (s 38)
- seeking review of access grant decisions
- where a Minister is the respondent.
Requests for documents and information
The OAIC issues notices under s 54Z of the FOI Act to notify agencies that the OAIC has commenced review. This is usually accompanied by a standard Notice of IC Review application and Request for Documents, which refers agencies to the FOI Guidelines at [10.100] to determine what information we require, including the documents at issue where relevant.
The OAIC expects agencies to respond to requests for information within the time specified in the notice. The OAIC will be considering the use of its enforcement powers where appropriate and may issue the following notices under the FOI Act to request the documents at issue:
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Unless the document is subject to a national security, Cabinet, or Parliamentary Budget Office exemption claim (ss 33, 34, or 45A of the FOI Act), a notice under s 55T of the FOI Act may be issued to staff at the Executive Level 2 or Senior Executive Service Band 1 levels where the OAIC does not receive the information requested within the prescribed timeframe or where the agency is requesting additional time to provide the relevant documents.
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A notice under s 55R to require the provision of information and the production of documents may be issued to staff at the SES Band 1 level or the Chief Operating Officer of the agency, where an agency has failed to respond to a s 55T notice within the required timeframe.
The OAIC will also give written directions under s 55(2)(e) in relation to specific IC reviews. Where the agency or minister fails to comply with a direction, the Commissioner may proceed to make a decision (s 55K) on the basis that the agency or minister has failed to discharge their onus (s 55D(1)).
Further information about the IC review process and the Information Commissioner’s powers to gather information is set out in Part VII of the FOI Act and in Part 10 of the FOI Guidelines.
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Recent Information Commissioner review decisions
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Information Commissioner (IC) review decisions are published on AustLII. The FOI Commissioner has made several IC review decisions since commencing in the role on 19 February 2024 including:
IC review decisions involving the secrecy provisions (s 38)
As noted above, the OAIC has been focusing on certain priority cohorts including IC reviews where the sole access refusal reason relates to secrecy provisions (s 38), with various matters progressing to a decision under s 55K of the FOI Act. In most cases, the Commissioner has affirmed the agency’s decision to exempt material under s 38.
However, in some cases, the Commissioner has set aside the agency’s decision on the basis that the agency has not met its onus of establishing that the decision is justified; or the Commissioner should give a decision adverse to the IC review applicant (s 55D of the FOI Act). Examples include:
While the circumstances and secrecy provisions differ, agencies should ensure they have consistent and comprehensive policies in place for deleting material claimed as exempt under s 38, particularly where that material includes personal information which may be subject to the exception at s 38(2). This is because, in an IC review, noting the onus under s 55D, the Commissioner is unlikely to be persuaded that material is exempt where:
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the agency has deleted material under s 38 in an inconsistent manner, or
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it appears on the face of the document that the material is the applicant’s personal information, and it is reasonably practicable to separate it from other personal information (if any) in the document.
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Extension of time applications: s 15AA
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Under s 15AA of the FOI Act, an agency may extend the processing period by up to 30 days if the applicant agrees in writing.
Benefits of reaching extension agreements under s 15AA include:
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Providing a point of engagement with FOI applicants around the progress of their requests and causes for delays
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Managing FOI applicant expectations around timeframes which may prevent behavioural escalation, complaints or increased correspondence
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Preventing unnecessary Deemed Decisions, protecting FOI applicants' review rights
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Preventing unnecessary applications for extension to the OAIC.
An agency can also ask an FOI applicant for multiple extensions under s 15AA as long as the combined length of all agreed extensions does not exceed 30 days. An agency must give written notice of an extension to the OAIC as soon as practicable after the agreement is made. If the agency does not tell the OAIC, the extension is invalid. The EOT smartform offers a fast and straightforward way to notify the OAIC of 15AA agreements.
A s 15AA agreement cannot be made once an FOI request has become a deemed refusal under s 15AC.
You can find further information about Extensions of time on the OAIC website:
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Recent and upcoming events
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