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Message from Acting FOI Commissioner, Toni Pirani

This week I complete my 9-month tenure as acting FOI Commissioner. I’m pleased to have this opportunity to welcome Elizabeth Tydd as Australia’s FOI Commissioner for the next 5 years. Elizabeth brings a wealth of experience from NSW where she has been Information Commissioner. Her knowledge and energy will be transformational for FOI at the Commonwealth level. Please make her welcome.

As I reflect on my time in the role I am most impressed by the professionalism and dedication of all of my colleagues here at the OAIC. It has been a challenging time. We all care deeply about what we do. We have faced intense scrutiny and we have felt it personally, professionally, organisationally. But we have kept going and I am confident that ultimately, this time will set the OAIC up for being a better, stronger regulator going forward.

For me personally, the past 9 months have been an honour and a privilege. I have enjoyed the role immensely. I have particularly enjoyed making decisions on IC reviews. Every matter has given me a new insight into the work that each of you do every day. The long list of IC review decisions at the bottom of this newsletter is evidence of just how much I have enjoyed this part of the role. At the time of writing I’m optimistic of achieving a century of IC review decisions (currently on 94 not out!).

I conclude with thanks:

  • Thanks to all of you for the work you do. At the OAIC we see only a small tip of the total amount of FOI work done in the Commonwealth. Remember, you play a key role in government transparency, accountability and building trust in our democracy. This is a big deal.
  • Thanks to Australian Information Commissioner Angelene Falk for making my time back at the OAIC everything I had hoped it could be.
  • Thanks to all of the staff at the OAIC. It has been an absolute pleasure to work with all of you.
  • Special thanks to Rocelle Ago who has been unwavering in her support for me and for the FOI Branch at the OAIC.

Australia’s Third Open Government National Action Plan released

The Australian Government recently released Australia’s Third Open Government National Action Plan (NAP3).

NAP3 is focused on the delivery of 8 commitments to improve public participation and engagement in government, strengthen government and corporate sector integrity, and enhance Australia’s democratic processes.

Our Deputy Commissioner Elizabeth Hampton and incoming Freedom of Information Commissioner Elizabeth Tydd were involved in the co-design of NAP3 as members of the Open Government Forum alongside civil society and other government members.

As a key integrity agency dedicated to managing government-held information as a national resource, the OAIC will work as part of the Open Government Partnership Australia to progress the commitments in NAP3.

Information Publication Scheme (IPS) Review: Update

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. In 2023, the OAIC commissioned a survey to facilitate the IPS review for each agency. The results will assist in identifying improvements and will further promote the proactive publication of Australian government information. The OAIC will publish its report on the findings of this IPS Review shortly.

IC review update: Notice of IC review application and request for documents – change to information requests relating to practical refusals

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.

For IC review applications involving a ‘practical refusal’ reason, the OAIC will be issuing specific s 54Z notices and requests for information, and will include an editable PDF for agencies to complete to simplify the process of providing submissions to the OAIC.

Our aim with this new process is to help guide agencies to provide the specific information that is particularly relevant to the Information Commissioner’s consideration of practical refusal decisions, with a view to making it easier for agencies to prepare their response, reduce the need for further information requests and therefore resolving these types of IC reviews more quickly.

We would welcome any feedback from agencies that have already received the new Notice of IC review application and Request for Documents – preferably before the documents requested are due, to allow us to more quickly implement any improvements that will make the process easier for agencies.

FOI Act Knowledge Quiz - Questions

Test your knowledge of the FOI Act with the Questions below! Write down your answers to each question before checking your answers at the end of this ICON alert.

Questions:

Q1 On what day does a deemed access refusal decision occur?

Q2 When is an Agency required to notify the OAIC of an applicant’s agreement to an extension of the processing period under s 15AA?

Q3 True or False – Amendment or Annotation requests must state they are applications for the purposes of the FOI Act?

Extension of time applications: Update

Extensions of time under s 15AB

An agency may apply to the OAIC for an extension if the FOI request is complex or voluminous. The agency must provide adequate explanatory information in the application to justify why an extension is necessary in respect of the complexity and/or volume.

Where the reason for requiring an extension of time does not relate to the complexity or volume of an FOI request, for example, where delays have been caused by administrative errors or a failure to process the request in a timely manner, consider whether other extension options are more appropriate.

The following resources contain additional information to assist agencies with extensions of time to process FOI requests:

New agency resource: extension of time applications

The OAIC has updated the existing agency resource ‘Apply for an extension of time to process a freedom of information request’.  This resource gives an overview of the extension of time provisions in the FOI Act and explains how to apply to the OAIC for an extension. It also outlines better practices when applying for an extension of time and common mistakes that may result in an extension application being declined.

Recent Information Commissioner review decisions

Information Commissioner (IC) review decisions are published on AustLII. Recent decisions include:

Freedom of Information investigation outcomes

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.

FOI Act Knowledge Quiz - Answers

Answers:

A1. On the last day of the processing period (s 15AC(3)). Deemed affirmation in respect of an internal review request also occurs on the last day of the processing period (s 54D(2)).

A2. S 15AA(b) states the agency or Minister is required to give notice to the OAIC ‘as soon as practicable’ after reaching a written s 15AA agreement with an FOI applicant. If the agency or minister does not tell the OAIC, the extension is invalid. The most efficient and preferred manner to notify the OAIC of a s 15AA agreement is by completing the smartform.

A3. False. The FOI Act only requires access requests to state they are applications for the purposes of the FOI Act (s 15(2)). This means that any amendment or annotation request received by an Agency or Minister should be treated as an FOI request, unless the applicant confirms in writing the request was intended to be an alternative type of amendment or annotation request.

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Acknowledgement of Country

The OAIC acknowledges Traditional Custodians of Country across Australia and their continuing connection to land, waters and communities. We pay our respect to First Nations people, cultures and Elders past and present.

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