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Message from Freedom of Information Commissioner Elizabeth Tydd

The start of a new financial year provides an opportunity to report on the Office of the Australian Information Commissioner’s (OAIC) FOI progress for 2023/24.

The OAIC’s service improvements across the FOI jurisdiction have been wide ranging:

  • Despite a 27% increase in FOI complaints, there was a 204% increase in finalisations. Overall FOI complaints on hand to were reduced to 78 and all FOI complaints received and registered up to 2022 were finalised.
  • We conducted and finalised 24 complaint investigations in 2023/24 – a seven-fold increase.
  • We finalised 1753 IC review applications – a 15% increase in finalisations, notwithstanding the 7% increase in applications received.
  • We issued 207 review decisions – a 200% increase.
  • We revised the FOI Guidelines and produced 2 Procedural Directions to direct agencies’ processes towards prompt finalisation and improve their first instance decision-making.
  • We conducted and finalised the Information Publication Scheme review (conducted every 5 years). Positioned with this intelligence we have embarked on a concerted program to assist agencies in meeting their proactive publication requirements.
  • We advanced an active program of engagement, monitoring and provision of regulatory guidance including publications, webinars, and statistical reporting.

These improvements increase our ability to focus on more recent matters and place the OAIC in a better position to be an effective regulator that meets community expectations and plays an important role in supporting democracy by upholding the fundamental right to access government information.

The percentage of decisions made within time has increased from 70% in 2021/22 to 74% in 22/23. We will work with agencies to identify opportunities to improve agencies’ compliance with statutory timeframes, including through developing practical guidance and tools to assist agencies to make timely decisions and meet their obligations under the FOI Act.

Looking ahead, we will work with agencies to improve their decision-making and guide their FOI practices to ease compliance. In doing so our objective is to ensure that the Australian community enjoys their right to access government information.

Survey for FOI practitioners

The OAIC is conducting a survey of FOI practitioners working in Australian Government agencies opening today (Monday 15 July). This survey aims to strengthen our understanding of FOI practitioners’ needs around regulatory guidance. We have engaged ORIMA Research to assist with this project.

ORIMA will  be in contact with you today about completing this survey if you are your agency’s primary FOI Contact Officer (as listed in the FOI Statistics Portal). We would be grateful for your support of this project by taking some time to complete the survey. The survey will inform the exercise of the OAIC’s FOI functions, including by providing agencies with targeted guidance.

Information Publication Scheme review

The 5-yearly review of the Information Publication Scheme (IPS) provides insights on the operation of the IPS in Australian Government agencies – for more information, see our June ICON alert. Additionally, we and/or the service provider who we engaged to conduct the survey for this review (ORIMA) may also be in touch with your agency in coming months with feedback about the operation of its IPS, according to the 2023 review.

IC review procedure directions

A reminder that on 1 July 2024, the OAIC revised its procedure directions for Information Commissioner reviews – see our ICON alert of 1 July for more information. Our Information Commissioner reviews webpage includes the revised directions as well as resources for agencies:

Please keep an eye on our Information Commissioner reviews webpage as we will continue to update it with new resources.

Recent Federal Court decision: Warren v Chief Executive Officer, Services Australia

Warren v Chief Executive Officer, Services Australia [2024] FCAFC 73 (7 June 2024)

The Full Federal Court of Australia (the Court) allowed an appeal of a decision by the Administrative Appeals Tribunal (AAT) in Warren; Services Australia and (Freedom of information) [2022] AATA 4191.

Background

The appellant had applied under the Freedom of Information Act 1982 (FOI Act) to the respondent, Services Australia (formerly the Department of Human Services), for documents relating to the Pay As You Go (PAYG) data matching initiative, which was subsequently known as ‘Robodebt’. The Department identified 13 documents relevant to the scope of the request, but refused access under ss 34 and 37(2)(b) of the FOI Act. The appellant subsequently applied for an IC review of Services Australia’s decision, and the decision was set aside by the Australian Information Commissioner (the Commissioner). The Commissioner found that nine documents were not exempt under s 34(3) on the basis that the documents pertained to descriptions of proposals and costings and it was unclear how disclosure of this information would disclose a Cabinet deliberation or decision. The Commissioner also found that the existence of the deliberations by Cabinet had been officially disclosed by the Government through its 2015-2016 Budget Statements, and therefore s 34(3) could not apply to the documents.

Services Australia then applied to the AAT for a review of the Commissioner’s decision. The AAT set aside the Commissioner’s decision in relation to seven documents on the basis they were exempt under ss 34(1)(d), 34(3) and/or 47C. The appellant then appealed the decision of the AAT to the Court.

Key findings of the Court

In considering the appeal, the Court found that the AAT had erred by failing to engage with issues raised by the parties at the hearing for consideration and that the appellant was not afforded procedural fairness. The Court explained that although the jurisdictional error was sufficient to dispose of the appeal, it also considered that the appeal raised some important questions as to the construction of s 34(3), which would need to be considered by the AAT on rehearing, and it was therefore in the interests of the parties to determine those questions.

Construction of what is ‘deliberation’ in s 34(3)

In considering whether disclosure of the documents would reveal a Cabinet deliberation, the AAT undertook a comparative analysis between the information in the documents in issue and information contained in the relevant Cabinet deliberation. The Court held that this approach is misguided and that the exemption in s 34(3) is limited, whereby it is the information contained in the actual document itself that must contain information that reveals a Cabinet deliberation or decision. The Court explained that the error in the approach taken by the AAT is to look at other evidence to see whether the information in the document in issue would reveal a deliberation or decision of Cabinet, and then conclude that the document in issue is exempt. The Court further explained that the mere fact there was a subsequent Cabinet deliberation or decision does not necessarily establish that the document in issue contains information that would reveal that deliberation or decision.

Exception to the exemption in s 34(3)

Section 34(3) states that the exemption does not apply if ‘the existence of the deliberation or decision has been officially disclosed’. The Court explained that the exception in s 34(3) does not require disclosure of the substance, or detail, of the deliberation or decision to operate. The Court provided an example to illustrate the operation of the exception, whereby Cabinet might have deliberated on a policy proposal to fund the construction of a new highway and the Minister responsible, with the authority of Cabinet, later announces that Cabinet has made that decision (without disclosing the detail of what was deliberated). In these circumstances, the Court explained that the existence of the decision would have been officially disclosed and the exception in s 34(3) would therefore apply.

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:

  • updating FOI guidance to ensure best practices with the FOI Guidelines and better promote the objects of the FOI Act
  • providing training to staff on the updated FOI guidance
  • providing an apology to a complainant
  • reviewing case management system to incorporate the auto generation of a Schedule of Documents.

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.

Recent IC review decisions

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

FOI stats due

A reminder that FOI statistics for quarter 4 are due to be entered to the FOIStats database by 21 July 2024.

Annual returns (FOI and IPS staffing, resources and expenditure) are due by 31 July 2024.

Please see our FOIStats guide (which we have recently updated) for further guidance on entering your FOI statistics into the database.

If you still have questions after checking the FOIStats Guide, please get in touch using our Enquiry Form or email FOIGuidance@oaic.gov.au.

Webinars

We will continue to present webinars for FOI practitioners in coming months (following our FOI statistics webinar this week and General FOI Obligations in April).

26 August 2024: IC review practice update 
10 September 2024: Extensions of Time
22 October 2024: Complaints
19 November 2024 (TBC): Vexatious applicant declaration

Registration details will be circulated to our Information Contact Officers Network (ICON) via ICON Alert and/or Information Matters closer to the dates.

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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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