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Message from FOI Commissioner Elizabeth Tydd

Understanding the operational environment has been the focus of my engagement over the last month.

I have been heartened by the positive response from agency heads to my program of stakeholder engagement.

It demonstrates their commitment to upholding the right to access information and their deep appreciation of the critical role that right plays in promoting integrity and a participative democracy. That leadership can be harnessed into operational improvements that better serve citizens, agencies and the OAIC. In my discussions with agency heads we have explored strategies to promote effective information governance and management of FOI responsibilities. Some examples include:

  • The development of guidance, such as flow charts explaining the interaction of secrecy provisions with the FOI Act. This will assist making decisions under the FOI Act and help the OAIC assist with the consideration of relevant IC reviews. It will also inject certainty and uplift capability. Importantly, it will also inform the initial decisions made by agencies who possess domain expertise.
  • More targeted guidance from the OAIC and a review of our existing guidance that is responsive to new developments and operational factors, particularly those in a digital environment
  • Greater clarity in our communication, in particular, procedural directions and decisions that ensure applicants and respondents appreciate what is required of them and are mindful of their compliance requirements. For example, the positive duty imposed upon decision makers to assist the Information Commissioner under s55DA of the FOI Act.
  • Fostering respect for both the review process, our independent regulatory role, and the  unique knowledge and authority we offer as the national FOI regulator, by refining our processes and injecting more certainty into our approaches.

Some of these initiatives are set out in this newsletter and I encourage your engagement with this publication. Finally, I know that successful engagement must be across  all levels and we plan further engagement with practitioners to progress strategies, including surveys to better understand your needs and address them through responsive guidance and processes.

Revisions to FOI Guidelines

The OAIC has revised Part 9 of the FOI Guidelines: ‘Internal agency review of decisions’, following a public consultation process.

We have introduced a number of significant additions, such as the factors agencies should take into account when deciding whether to grant an extension of time for internal review, and clarification that FOI applicants should not apply for internal review and IC review at the same time. A full list of the revisions is available at our webpage: Summary of version changes to s93A guidelines.

Recent investigation outcomes and IC review decisions

Recent investigation outcomes are available on the OAIC’s website, please refer to Freedom of Information Investigation Outcomes summary table, current as of 15 March 2024.

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

Reminders

Use Smartforms for EOT

Agencies should request an extension of time to process an FOI request, or notify an agreed extension of time, using the OAIC’s online smart form.

Remember, if an agency does not provide the Information Commissioner with adequate reasons, we may refuse the extension of time request. Our website provides further guidance and advice for agencies about extension of time for processing requests, including the details to be included in a request.

Provide links to the OAIC’s smart forms in your decision templates and other notice templates

Any decision letter, or other notice setting out review rights, should link to the OAIC’s smart forms to assist in timely lodgement of IC review applications.

Please ensure your templates link to the OAIC’s:

FOI Complaints and IC reviews: meeting timeframes

Agencies should refer to our previous ICON alert on 15 March 2024, where we provided information about the OAIC’s expectations for meeting timeframes for requesting information for both FOI complaints and IC reviews. Requests for extension of times will only be granted by the OAIC in exceptional circumstances.

Agency resource: managing increased volume of FOI requests

The FOI Act requires agencies and ministers to comply with statutory timeframes for processing FOI requests.  At times, agencies may experience increases in FOI requests which may pose challenges in ensuring decisions are finalised within these timeframes. The OAIC publishes the following online resource to assist agencies: FOI agency resource 16: Managing increased volume of FOI requests. This resource sets out practical strategies and other guidance for agencies.

Quarterly FOI stats due 21 April

A reminder that FOI Statistics quarter 3 returns are due to be uploaded to the FOIStats database by 21 April 2024. Please see the FOIStats guide for further guidance on uploading FOI Statistics. Please contact us if you have any questions using our Enquiry Form.

Upcoming FOI workshops

The OAIC is holding a series of webinars for FOI practitioners.

The first webinar will be held on 30 April 2024 at 12-1pm EST and addresses FOI obligations. It will provide an overview of the FOI Act, the role of the OAIC, processing of FOI requests, and proactive publication. If you would like to attend this webinar, please email us at FOIguidance@oaic.gov.au.

The list of 2024 webinars is below – registration details for most sessions will be circulated closer to the date. We will also host two webinars on the 2023 Information Publication Scheme review - dates for these sessions to be advised.

30 April 2024: General FOI obligations
23 July 2024: FOI Stats
26 August 2024: IC review practice update 
10 September 2024: Extensions of Time
22 October 2024: Complaints
19 November 2024 (TBC): Vexatious applicant declarations

Invitation to submit an EOI in our talent register

Are you interested in working in the OAIC’s FOI Branch? We invite you to put in an application to our talent register. Working with us puts you at the forefront of access to information regulation. More details are available at: OAIC talent register.

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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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