ICON alert - edition 4

Message from Freedom of Information Commissioner Elizabeth Tydd

I am very pleased to accept my appointment as the next Australian Information Commissioner, commencing 16 August 2024. It is a great honour that I accept with immense gratitude and a resolute commitment to leadership in promoting and protecting information access and privacy rights.

In both my current and upcoming position I will continue to be focused on understanding the operational environment and exploring strategies to promote information governance and the management of FOI responsibilities.

During my engagement with agency heads over the past month, I have been inspired by agency heads’ commitment to uphold the objects of the Act, respect for the OAIC’s role in the information access landscape and willingness to work with the OAIC to improve decision making at the initial stage.

I can see this commitment operationalised through the timely delivery of decisions, with a significant number of agencies achieving high rates of compliance, and through the implementation of initiatives to improve information access operations, including the establishment of surge teams, administrative access schemes and information access champions or escalation points for the OAIC. I commend this commitment and recognise that our engagement currently reflects insights gained through past aged decisions. The renewed commitment of agency heads and your current levels of timeliness provide a strong indicator that we can move beyond the past. I encourage you to apply that same active engagement to assist us in finalising aged matters.

The OAIC’s current regulatory focus is on delivery. It includes the delivery of guidance that will support agencies and ministers to meet their obligations under the FOI Act. To that end, the OAIC will continue to deliver webinars, revised Guidelines and targeted practical resources, some of which are referred to further in this newsletter. I encourage you to review the revised guidelines and engage in the consultation process for proposed revisions.

The OAIC is also committed to delivering a timely IC review process, informed by the principles of informality, responsiveness and proportionality. To support agencies and ministers to understand the expectations and steps of the IC review process, revised procedure directions and Part 10 of the FOI Guidelines will commence on 1 July 2024. The revised procedure directions follow a consultation process held in 2023. The Direction sets time standards that are governed by the objects of the FOI Act. Further information is set out below, and I encourage you to review the revised directions and practical resources ahead of the implementation date.

While there will be a more formal process to engage with the OAIC through an upcoming survey on practitioners’ guidance and training needs, I welcome feedback you may have regarding the delivery of the OAIC’s regulatory functions. The OAIC’s senior leadership contact for information access matters is Ms Rocelle Ago, Assistant Commissioner Freedom of Information.

Revised IC review Procedure Directions and Part 10 of the FOI Guidelines commencing 1 July 2024

Following consultation, the following procedure directions under s 55(2)(e)(i) for Information Commissioner (IC) reviews will be revised from 1 July 2024:

• Direction as to certain procedures to be followed in Information Commissioner reviews (for agencies)
• Direction as to certain procedures to be followed by applicants in Information Commissioner reviews

The revised directions are available on the Upcoming changes to Information Commissioner review procedure page on our website.

Key revisions to the IC review procedure directions will include:

• a requirement that respondents engage, or attempt to engage, with the applicant during the IC review, with a view to resolve or narrow the matters at issue
• a requirement that applicants and respondents send submissions to each other at the same time as they send them to the OAIC, and
• specific procedures for certain types of IC reviews, including reviews of deemed access refusal decisions, and access refusal decisions that are made on the basis that documents cannot be found or do not exist.

The revised procedure directions will be accompanied by a revised Part 10 of the FOI Guidelines (Reviews by the Information Commissioner Commissioner).

For more information, we encourage you to read the Upcoming changes to Information Commissioner review procedure page, which includes the directions, Part 10 of the FOI Guidelines and the new resources developed to assist parties to IC reviews, including:

• Information Commissioner Reviews: Quick guide to use of directions and information gathering powers
• Direction as to certain procedures to be followed in Information Commissioner reviews: FAQs for agencies and ministers
• Quick guide to the direction applicants follow in an Information Commissioner review

The Upcoming changes to Information Commissioner review procedure page will be continually updated to include new FAQs and resources.

Revised FOI Guidelines

Part 5 (Exemptions)

The OAIC has revised Part 5 of the FOI Guidelines (Exemptions) following a public consultation process.

Amendments have been made in relation to the following exemptions:

• s 33 (international relations)
• s 34 (documents disclosing a deliberation or decision of the Cabinet)
• s 38 (secrecy provisions)
• s 45 (material obtained in confidence)
• s 42 (legal professional privilege)
• s 47 (trade secrets)

We have also made changes to emphasise the discretion agencies and ministers have to release documents, even if they are exempt under Part IV of the FOI Act.

Part 6 (Conditional exemptions)

The OAIC has revised the Part 6 Guidelines (Conditional Exemptions) following public consultation. The update includes a number of revisions, including a restructure to reflect the sequential consideration of the conditional exemptions and the public interest test to better support decision makers in drafting statements of reasons under s 26 of the FOI Act.

Version changes to s 93A Guidelines: webpage

For a more complete list of changes introduced in the revised Part 5 and Part 6 FOI Guidelines, see our webpage: Summary of version changes to s93A guidelines. This webpage contains archived versions on each part of the FOI Guidelines and notes changes between versions.

FOI Guidelines consultation

Part 2 (Scope of the application of the FOI Act)

The OAIC is consulting on revisions to Part 2 of the Guidelines. We have published a consultation draft and are seeking comments by 5 June 2024.

Part 2 of the FOI Guidelines provides an overview of the agencies subject to the FOI Act and the documents that are available for access under the FOI Act. The proposed revisions to Part 2 aim to improve readability, reflect legislative changes to the FOI Act and reflect relevant Federal Court, Administrative Appeals Tribunal and Information Commissioner review decisions.