Message from Freedom of Information Commissioner Toni Pirani
It was wonderful to see so many of you in person and online to acknowledge International Access to Information Day (IAID) on 25 September 2024. We hope you found the sessions interesting, relevant to your day to day work and useful in developing a greater understanding of the broader information access work that agencies undertake in parallel to the FOI Act. For those unable to join us on the day, we have published the video, transcript and slides for this event. You can also access recordings of other IAID events on our IAID page.
The Office of the Australian Information Commissioner’s (OAIC) 2023-24 annual report was tabled in Parliament in October. The report describes the key themes and trends arising from the data that we collected from agencies and ministers regarding that year. Appendix E of the report sets out that data, and discusses the key themes and trends, in detail.
Some of the key statistics reveal that agencies and ministers received a similar number of FOI requests in 2023–24 as in the previous 2 years (34,706). The proportion of FOI requests seeking access to personal information was 72%, slightly less than in 2022–23 and 2021–22 (74%), and the personal privacy conditional exemption in s 47F of the FOI Act continues to be the most claimed exemption (39% of all exemptions claimed). Seventy-four per cent of FOI requests were decided within the statutory time (this is the same proportion as for 2022-23). The total reported costs attributable to FOI in 2023–24 were $86.24 million, a 23% increase on 2022–23 ($70.33 million), and the most significant factors behind this increase were the time taken to process FOI requests, and legal expenditure was 31% higher in 2023–24 than the previous year.
Moving forward, the OAIC will be making available two sets of data on a quarterly basis:
- The OAIC’s data regarding Information Commissioner (IC) review and FOI complaints caseload and focus areas for 2024-25, now available on the OAIC website;
- Your agency’s quarterly and annual statistical returns, which we are in the process of testing and hope to make available very shortly.
In the final weeks of 2024, we will continue to focus on our IC review legacy caseload, particularly the finalisation of matters received in 2020. We appreciate your engagement on these matters and in responding to our requests for information in a timely way.
Upcoming events: webinars
On 22 October 2024, the OAIC held a webinar on FOI complaints, attended by around 100 FOI practitioners. Topics included the investigation process, common complaint issues and trends, and recent complaint statistics.
The final webinar in the 2024 series is coming up tomorrow: 19 November 2024 from 10:00–11:00 AEDT. It is an information session on Vexatious Applicant Declarations and will cover factors the Information Commissioner may consider in deciding whether to make a vexatious applicant declaration, evidence that may be relevant to those considerations and the process for deciding applications.
In you are unable to attend or would simply like to know more, Part 12 of the FOI Guidelines discusses the grounds for a declaration and considerations taken into account by the Information Commissioner in exercise of this power.
FOI Guidance update
FOI Guidelines
The OAIC is currently reviewing and updating Part 2 of the FOI Guidelines to reflect the decision of the Full Federal Court in Attorney-General v Patrick [2024] FCAFC 126.
Seeking specific guidance
The OAIC provides guidance to agencies and ministers through the Guidelines issued under 93A of the FOI Act and practical resources available on the OAIC website and through its enquiries service. FOI guidance have been and will be updated more regularly and we encourage you to consult our published resources in first instance. We may not be able to respond to individual enquiries that are not covered by our published guidance as we may need to consider the issues as part of our upcoming reviews.
IC reviews: reminders for agencies and ministers
Third party consultation
To assist in identifying the exemption(s) that a third party may contend, agencies should state in their consultation letter the provision under which they are consulting the third party (for example, ss 26A, 27, 27A). Sample notices to third parties can be found on our resource Sample freedom of information notices. It may also be helpful to consider our resource Personal and business information: third-party review rights.
Agencies should ensure that they send notices to third parties as required by s 54P of the FOI Act. This provision applies where an agency/minister decides not to give access to a document in relation to which they had consulted a third party under ss 26A, 27, or 27A, and an IC review application is made with respect to that decision. The following OAIC resources may assist agencies with s 54P notices:
- Our resources Sample freedom of information notices and Information Commissioner reviews include a template ‘Notice (to affected third party) that applicant has requested IC review of decision’.
- Our resource Personal and business information: third-party review rights illustrates a third party’s review rights and opportunity to be notified of agency decisions.
Responding to s 54Z notices
The new IC review procedure direction for agencies took effect from 1 July 2024, and the Information Commissioner’s notices issued under s 54Z of the FOI Act now require agencies to provide information regarding engagement with the IC review applicant, to resolve or narrow the issues in dispute in the IC review, within 30 business days. If seeking an extension to respond to the s 54Z notice for the purpose of engaging with the IC review applicant, agencies should provide detailed reasons, including attempts that they have already made since receiving the s 54Z notice to engage with the applicant or make arrangements for that engagement. Extensions of time will not be granted if no attempt has been made to engage with the applicant. The OAIC’s web page Information Commissioner reviews contains the IC review practice directions for agencies and applicants, and supporting resources and practice documents.
Thinking of making a s 55G decision?
Before making a revised decision under s 55G of the FOI Act, an agency should discuss whether, in the circumstances of the IC review, a revised decision is suitable. In an IC review involving third parties, for example, it may be more suitable for the agency to make submissions. The FOI Guidelines contain other guidance on revised decisions at paragraphs [10.75] to [10.83].
Making submissions
In making submissions, agencies should spell out acronyms on first use if there is a chance that users won’t be familiar with the acronym. For example, if agencies are naming their business areas and records management systems, agencies should include names in full before using acronyms.
Recent IC review decisions
Information Commissioner (IC) review decisions are published on AustLII. Some recent decisions include:
‘AQG’ and Department of Home Affairs (Freedom of information) [2024] AICmr 239 (6 November 2024)
This decision primarily discusses the application of s 47E(c) of the FOI Act to a request for information about the qualifications of certain staff members of the Department who handled the applicant’s registration as a migration agent. It found the documents are conditionally exempt in full under s 47E(c) of the FOI Act and disclosure would, on balance, be contrary to the public interest.
‘AQC’ and Department of Education (Freedom of information) [2024] AICmr 235 (31 October 2024)
This decision discusses the application of ss 47C, 47E(c) and 47F of the FOI Act to an investigation report produced by the Department in response to a complaint made by the applicant. It may have broader implications for agencies in relation to the release of investigative material pertaining to workplace complaints.
‘APM’ and Department of Defence (Freedom of information) [2024] AICmr 234 (30 October 2024)
This decision mainly discusses the application of s 47F of the FOI Act to a request for documents relating to complaints and an investigation involving the applicant. The decision notes that s 47F of the FOI Act can apply even where the identity of individuals is known to an applicant. It also considers the contexts in which disclosure of such personal information is unreasonable including the capacity in which the applicant is involved in the subject matter of the documents which may vary.
‘APA’ and Australian Electoral Commission (Freedom of information) [2024] AICmr 232 (29 October 2024
This decision discusses ss 11A(5), 24A, 42, and 47F of the FOI Act to material held by the AEC relating to the registration of a non-parliamentary party. It upholds the deletion of legally privileged material (s 42) and the personal information of third parties (s 47F) but sets aside the AEC’s deletion of staff names (s 47F). It also finds that the AEC has not conducted reasonable searches (s 24A) because it interpreted the words ‘pertaining to’ in an unduly narrow manner. While it is primarily of interest to the applicant, it bears relevance for agencies in relation to correctly determining the scope of an applicant’s request and the deletion of staff names under s 47F of the FOI Act.
‘AOY’ and Services Australia (Freedom of information) [2024] AICmr 229 (28 October 2024)
This decision discusses s 38 of the FOI Act in the context of the secrecy provisions that apply to material held by Services Australia, as well as the application of ss 22, 47E(d), and 47F of the FOI Act to that material. It broadly upholds the deletions required by the secrecy provisions (s 38) and the deletion of staff logon identifiers (s 47E(d)) but sets aside the deletions under ss 22 and 47F of the FOI Act.
Further, this decision examines the treatment of material provided through administrative access arrangements where an applicant has not expressly consented to that material being scoped out of their request. Consistently with the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act (FOI Guidelines) at paragraph [3.5], it finds that this material remains within the scope of the request and that by failing to process this material under the FOI Act, Services Australia has not undertaken reasonable searches (s 24A).
