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Message from Information Commissioner Liz Tydd, introducing new FOI Commissioner Toni Pirani
It is my privilege to write to you as the newly appointed Information Commissioner and welcome Toni Pirani, who today commences her appointment as the Australian Freedom of Information (FOI) Commissioner. Toni brings a wealth of experience to the FOI Commissioner role, including in her role establishing, leading and managing complex operations including two Royal Commissions and the office of the Interim National Commissioner for Defence and Veteran Suicide Prevention, and more recently as Acting FOI Commissioner (May 2023 – February 2024) and Special Adviser, FOI Decisions within the OAIC.
As Freedom of Information Commissioner, Toni is steadfast in her approach to advancing timely information access, through her focus on the OAIC’s IC review work and in working with myself and Privacy Commissioner Carly Kind, in leading the OAIC to achieve its regulatory priorities across freedom of information and privacy.
I convey my thanks and appreciation for the opportunity to have worked with you as the FOI Commissioner and for your tireless work as FOI practitioners. I appreciate your continued commitment to work with the OAIC to meet your agency’s obligations under the FOI Act, improve your agency’s information access operations and actively engage with the OAIC, including through the recent practitioners’ survey. We achieved a 71% response rate for the survey, and I look forward to sharing the results in the coming months, and continuing my engagement with your agency in my capacity as Information Commissioner.
Upcoming FOI webinars – registrations open
Registrations are now open for two upcoming FOI Webinars, on Information Commissioner (IC) reviews and extensions of time (EOT).
The IC review practice update webinar will be held on Monday 26 August from 10.30–11.30am AEST.
This will be a 1-hour session addressing the revised IC review procedure directions which came into effect on 1 July 2024, key priorities for IC reviews, updated guidance and recent IC decisions.
In the meantime, information about the IC review practice directions, including resources for agencies and ministers, and practice documents, can be found on our webpage: Information Commissioner reviews.
We are also hosting a webinar on extensions of time on Tuesday 10 September 2024 from 10.30–11.30am AEST. This webinar will cover timeframes for processing FOI requests, and the ins and outs of extensions to those timeframes.
If you would like to attend one or both of these webinars, please email FOIGuidance@oaic.gov.au, advising the name and email address of attendees, as well as which webinar you wish to register for.
Revisions to FOI Guidelines
The OAIC has revised Part 2 of the FOI Guidelines: ‘Part 2: Scope of application of the Freedom of Information Act 1982’, following a public consultation process.
We have introduced a number of significant additions, such as reflecting the application of the FOI Act to Royal Commissions (following legislative change to the Royal Commission Act 1902).
Part 2 of the FOI Guidelines also now recommends that transfer arrangements between a minister and the minister’s department be documented in writing, with the details of the arrangement published on the minister’s website. A full list of the revisions is available at our webpage: Summary of version changes to s93A guidelines.
Recent IC review decisions
Information Commissioner (IC) review decisions are published on AustLII. Some recent decisions include:
Tarkine National Coalition Inc and Department of Climate Change, Energy, the Environment and Water (No. 2)(Freedom of information) [2024] AICmr 167 (13 August 2024)
Key Points: This decision discusses the application of ss 47E(d), 47F and 47G to correspondence relating to approvals under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). It finds that the s 47E(d) exemption (operations of an agency) does not apply to “show cause” correspondence between the Department and the third-party relating to compliance with the EPBC Act.
'AMO' and Australian Federal Police (Freedom of information) [2024] AICmr 165 (12 August 2024)
Key Points: This decision discusses the operation and application of s 25 of the FOI Act and circumstances in which the correct and preferable decision is to neither confirm nor deny the existence of certain documents.
‘AML’ and Airservices Australia (Freedom of information) [2024] AICmr 162 (7 August 2024)
Key Points: This decision discusses the application of s 12(1)(c) of the FOI Act to information made available by AA for purchase by the public.
Josh Taylor and Department of Health and Aged Care (Freedom of information) [2024] AICmr 164 (8 August 2024)
Key points: This decision discusses whether a practical refusal reason exists (ss 24, 24AA, and 24AB) primarily because of the time required for an agency to consult with multiple third parties about business documents. It provides guidance in relation to the considerations that may apply in these circumstances.
‘AMK’ and Department of Health and Aged Care (Freedom of information) [2024] AICmr 161 (8 August 2024)
Key points: The decision discusses whether it would be unreasonable to manually search over 7,000 documents which had been identified by using a combination of words used in the applicant’s request, in circumstances where the titles do not indicate that the documents would be relevant to the applicant’s request and a sampling exercise has been undertaken. The discussion provides another example relevant to the discussion in [3.88] of the Guidelines.
CropLife Australia and Department of Agriculture, Fisheries and Forestry (Freedom of information) [2024] AICmr 159 (2 August 2024)
Key points: This decision discusses whether the Department’s decision to find the applicant liable to pay a charge of $710.00 under s 29 of the FOI Act, was the correct and preferable decision in the circumstances. It provides an example of circumstances where the preferable decision would have been to decide that the applicant was not liable to pay a charge having regard to factors such as the public interest and the costs of calculating and collecting the charge.
Josh Taylor and Office of the Official Secretary to the Governor-General (Freedom of information) [2024] AICmr 151 (30 July 2024)
Key points: This decision discusses the application of s 6A of the FOI Act, relevant case law (in particular Kline v Official Secretary to the Governor-General [2013] HCA 52) and FOI Guidelines to the applicant’s request for documents relating to complaints about Australia Day honours. It finds that such documents are not documents that relate to ‘matters of an administrative nature’ and accordingly are not subject to the FOI Act.
