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Publication date: 16 September 2021
Executive summary
Agencies must publish documents released in response to a freedom of information (FOI) request within 10 working days after the day they are provided to the FOI applicant, subject to certain exceptions. This publication is known as a ‘disclosure log’. The purpose of the disclosure log is to make available to others information that has been released under the Freedom of Information Act 1982 (FOI Act).
Compliance with disclosure log requirements is an ongoing statutory responsibility for agencies subject to the FOI Act. This requirement reinforces the proactive publication rationale underlying the FOI amendments of 2010, in particular the introduction of the Information Publication Scheme (IPS).
Agency disclosure logs provide the public with an important and cost-effective avenue for accessing government information while providing agencies with the ability to reduce the resources required to deal with multiple requests for the same information.
In October 2019, the OAIC completed its initial desktop review of agency disclosure logs which examined 38 government agencies to assess compliance and practices. The purpose of the review was to identify whether agencies and ministers are complying with their disclosure log obligations, and the extent to which they make documents available for download from their websites.
Data collected for the purpose of the OAIC Annual Report 2019–20 showed that Australian Government agencies had increased the number of new entries on their disclosure logs in comparison to the previous financial year.[1] Due to public interest in agencies’ compliance with the disclosure log obligations in the FOI Act and the OAIC’s observations that some agencies have changed their practices since the initial review was undertaken, the OAIC undertook a further review of the same agencies’ disclosure logs in March 2021. This allowed for a longitudinal review of compliance.
While the desktop reviews found that most agencies are largely compliant with their disclosure log obligations, the reviews have identified that some agencies are requiring members of the public to contact them for access to documents on their disclosure logs rather than publishing the documents on the agency’s disclosure log for members of the public to access. Further, some agencies do not provide a clear description of the released documents which makes it difficult for members of the public to search for and identify what the documents contain and decide whether to request access. This places an unnecessary barrier between the public and government held information and increases work for the agency in responding to requests for access to disclosure log documents.
Other key findings of the reviews are:
- 97% of reviewed agencies in both the 2019 and 2021 reviews include some text introducing their disclosure log. However, these introductions vary in detail and are often split between the disclosure log landing page, the FOI landing page and the individual disclosure log entry, making it difficult for members of the public to clearly understand agency obligations.
- 42% of the reviewed agencies include a summary of the scope of the FOI request.
- Only 4 reviewed agencies (11%) describe the type of information released, such as an email, report, brief, photograph, media release etc. In circumstances where the document is not published and a description of the document type is not provided, members of the public may not be able to decide whether to seek access to the documents.
- 55% of the reviewed agencies in 2019 and 51% of the reviewed agencies in 2021 include a statement on their disclosure log advising that information will be provided in a PDF document as well as another accessible format.
- Eighteen of the agencies reviewed in 2019 (47%) published all documents released in 2018–19 for download from their disclosure log. Twenty-one of the agencies reviewed in 2021 (60%) published all documents released in 2019–20 for download from their disclosure log.[2]
- In both the 2019 and 2021 reviews, 2 reviewed agencies (5%) provided a link to another website from which members of the public can access documents.
- In 2019, 14 reviewed agencies (37%) required members of the public to contact them for access to all entries on their 2018–19 disclosure log. In 2021, the number of agencies that require the public to contact them to access all of their 2019–20 disclosure log entries decreased to 11 (31%). Two agencies in 2021 require members of the public to contact them to access most, but not all, entries on their 2019-20 disclosure log.
- In 2019, 12 reviewed agencies (32%) included information specifying a timeframe for the removal of documents from their disclosure logs and have an archive separate from their disclosure log. The percentage of agencies including information about the timeframe for removal of documents decreased to 9 agencies (26%) in 2021.
Recommendations
The OAIC considers that it is better practice for agencies and ministers to make documents available for download directly from their website and only ask members of the public to contact them for access when they are unable to upload a document due to the size of the file, the need for specialist software to view the information, or for any other reason of this nature. Such an approach is consistent with the object of the FOI Act to facilitate and promote public access to information promptly and at the lowest reasonable cost.
The desktop reviews also recommend that agencies and ministers:
- Review their disclosure logs in line with the disclosure log template at Annexure A to Part 14 of the FOI Guidelines, as amended from time to time.
- Provide an introduction to their disclosure log that plainly and clearly explains its purpose and the agency or minister’s obligations under the FOI Act, as well as the exceptions to publication.
- Describe the subject matter and content of documents on their disclosure log including the date of release to the FOI applicant, date of publication and description of the subject.
- Provide released documents in accessible formats.
- Include a statement on their disclosure log describing how members of the public can access documents in other formats and what format those documents may take.
- Include information about charges that may be imposed for providing access to documents not available for download, or which can be provided in another format. This should include the amount for each charge.
- Include a statement on their disclosure log specifying when removal or archiving of published entries will occur and under what circumstances.
- Provide members of the public with an archive of documents that are no longer directly available through the disclosure log as a result of the passage of time or changes to agency responsibilities.
The results of the desktop reviews will assist agencies identify areas where improvements can be made to their disclosure log practices. The OAIC has drafted updates to its guidance and resources to assist agency compliance and to support better practice. The OAIC is consulting on that draft guidance alongside publication of this report.
1. Background
1.1 Role of the Information Commissioner
The Australian Information Commissioner plays a key role in upholding the objects of the FOI Act and is supported by a range of powers and functions to promote and protect information access rights.
Under the Australian Information Commissioner Act 2010 (AIC Act) these include ‘monitoring, investigating and reporting on compliance by agencies’[3] and ‘providing information, advice, assistance and training to any person or agency on matters relevant to the operation of the Freedom of Information Act 1982’.[4] This review is undertaken as part of the Commissioner’s monitoring and advice functions under the AIC Act.
1.2 Legislative requirements
Section 11C of the FOI Act requires documents released in response to an FOI request to be published within 10 days after the day the documents are released to the FOI applicant. This is referred to as the agency’s disclosure log.
Subsection 11C(1) outlines 4 exceptions that apply to the disclosure log requirements. These are:
- personal information, where it is unreasonable to publish
- business, commercial, financial or professional affairs of any person, where it is unreasonable to publish
- other information of a kind determined by the Information Commissioner
- any information not reasonably practicable to publish because of the extent of the modifications required.
The Information Commissioner has identified information which is not required to be published in the Freedom of Information (Disclosure Log – Exempt Documents) Determination 2018.[5]
This determination covers:
- information in a document that was an exempt document at the time that access was given by the agency or minister to the applicant
- information in a document that the agency or minister would have decided was an exempt document at the time that access was given to the applicant, if the request for that document had been received from a person other than the applicant.
Subsection 11C(3) outlines the 3 ways in which an agency must publish the information. These are:
- making the information available for download from the website (s 11C(3)(a))
- publishing on the website, a link to another website, from which the information can be downloaded (s 11C(3)(b))
- publishing on the website other details of how the information may be obtained (s 11C(3)(c)).
Subsection 11C(4) outlines how a charge may apply, noting that an agency may only impose a charge if:
- the person does not directly download the information from the website and
- the charge relates to specific reproduction or specific incidental costs incurred in giving the person access to that particular information.
Subsection 11C(5) requires agencies and ministers to publish the details of the charge in the same way the information is published (i.e. on the disclosure log) if there is a charge imposed for access.
Section 11C of the FOI Act is extracted in full at Appendix A to this report.
1.3 FOI Guidelines
Under s 93A of the FOI Act the Information Commissioner may issue guidelines to which agencies and ministers must have regard when performing functions or exercising powers under the FOI Act. In relation to agency and ministerial disclosure logs, the Information Commissioner has issued Part 14 – Disclosure Log which is found on the OAIC website.
All references in this report to Part 14 of the FOI Guidelines are references to version 1.6 of the FOI Guidelines as published on 18 January 2019.
2. The reviews: objectives, reviewed agencies, scope and methodology
2.1 Objectives
The Information Commissioner’s freedom of information functions include the power to monitor, investigate and report on compliance by agencies with the FOI Act.[6] These reviews were undertaken as part of the Commissioner’s monitoring and advice functions under the AIC Act.
The objective of the disclosure log desktop reviews was to assess:
- whether the reviewed agencies publish sufficient information about processed requests and the documents to which access has been granted
- how the reviewed agencies make information available on their disclosure logs.
2.2 Reviewed agencies
In conducting these reviews, the OAIC selected 2 categories of Australian Government agency (the reviewed agencies):
- Australian Government Departments of State subject to the FOI Act (at the time of the 2019 review there were 18 Departments of State; there were 14 at the time of the 2021 review).[7]
- The 20 agencies and ministers that granted full or partial access to the largest number of non-personal FOI requests in 2018–19.
The reviewed agencies were chosen because:
- they are the agencies that process the largest number of FOI requests
- they include the agencies that grant full or partial access to the largest number of non-personal FOI requests and as a result are most likely to be subject to the requirement to publish documents on their disclosure log
- they cover a range of agencies and provide a broad base for assessing compliance and practices.
The Departments of State, agencies and ministers reviewed are listed in a table in Appendix B.[8]
Machinery of Government changes on 1 February 2020 had the effect of reducing the number of departments. Also, at this time the department known as Services Australia was established as an Executive Agency within the Social Services Department. As such, the number of departments of State and agencies included in the reviews differ from 2019 to 2021. While a number of departments have been renamed or functions subsumed, in effect, agencies considered in the 2019 review have also been considered in the 2021 review.
2.3 Methodology
Assessment criteria
The criteria used to assess how reviewed agencies make information available on their disclosure log includes an examination of the:
- introduction to the disclosure log
- description of disclosure log entries
- format and accessibility of documents
- forms of access, in particular whether documents were available for download
- information about charges
- timeframe for the removal and archiving of documents.
The following material was considered as part of the review:
- the FOI Act, in particular s 11C
- Part 14 of the FOI Guidelines (Disclosure log), version 1.6
- the reviewed agencies’ disclosure logs and any associated material on agency websites
- FOI requests made through the Right to Know website requesting access to documents not available for download on disclosure logs.[9]
Limitations on scope of review
The reviews were not able to assess whether agencies published documents on their disclosure logs within 10 working days of release as required by s 11C(6) of the FOI Act. This is because few agencies include both the date documents were released to the FOI applicant and the date the documents are published on their disclosure logs.
Guidance about the time of publication can be found at Parts 14.22 – 14.28 of the FOI Guidelines.
Evidence
The reviews explored 17 topics. These are detailed at Appendix C.
The 2019 desktop review assessed the disclosure logs of the reviewed agencies between 8 October 2019 and 15 October 2019. The 2021 review reviewed the disclosure logs of the reviewed agencies between 12 March 2021 and 28 March 2021. The Findings were recorded against the topics listed at Appendix C.
The percentages for each finding in the 2019 review were determined with reference to 38 reviewed agencies. The percentages for each finding in the 2021 review were determined with reference to 35 reviewed agencies. Percentages have been rounded to the nearest whole number.
The reviews considered 4 aspects of disclosure logs: layout, access, charges and maintenance.
3. Findings and recommendations
3.1 Layout
This section of the desktop reviews focuses on how information on the disclosure log is conveyed to members of the public. The layout of the disclosure log acts as an entry point for members of the public who seek access to government information. It is important that agencies and ministers provide clear information about the requirements of the disclosure log and how access can be obtained.
Members of the public should be able to easily identify the nature of the information on the disclosure log so they can make an informed choice when searching, downloading or requesting government information.
For the purpose of the reviews, the OAIC assessed:
- the introduction to the disclosure log
- the description of the subject matter or content of documents on the disclosure log
- the format of documents on the disclosure log.
Guidance on the design and content of the disclosure log can be found at Parts 14.29 – 14.37 of the FOI Guidelines.
3.1.1 Does the agency or minister include text that introduces the disclosure log?
The FOI Act does not prescribe introductory text that an agency or minister must publish. However, Annexure A to Part 14 of the FOI Guidelines assists by providing a recommended format for a disclosure log, which includes suggested introductory text.
The introduction to the disclosure log serves an important dual purpose; it describes how members of the public can access government information while setting out the obligations of agencies and ministers under the FOI Act.
In general terms, the recommended introductory text should consist of the following elements:
- a statement of the requirement to maintain a disclosure log under the FOI Act
- a description of the exceptions to publication under s 11C of the FOI Act
- information about how to access documents
- a description of how charges may be imposed
- a statement about the format or accessibility of documents
- information about when documents may be removed from the disclosure log.
Findings
- Thirty-seven reviewed agencies in 2019 (97%) included text introducing their disclosure log. Thirty-four of the 35 reviewed agencies in 2021 include text introducing their disclosure log (97%). The introductions vary in detail and are often split between the disclosure log landing page, the FOI landing page, or the individual disclosure log entry.
- In 2019, 25 reviewed agencies (66%) included a statement regarding the requirement to maintain a disclosure log under the FOI Act. In 2021, this increased to 29 of the 35 reviewed agencies (83%).
- Twenty-seven reviewed agencies (71%) included a description of the exceptions to publication under s 11C of the FOI Act when reviewed in 2019. In 2021, 29 reviewed agencies include a description of the exceptions to publication (83%).
Recommendations
- Agencies and ministers should explain the purpose of the disclosure log and reference their obligations under the FOI Act.
- To enhance accessibility and to avoid confusion, agencies and ministers should include a plain English explanation of their obligations rather than quoting, or only quoting, sections of the FOI Act.
- Agencies and ministers should include the exceptions to publication under s 11C(1) of the FOI Act in the introduction to their disclosure log. Agencies and ministers should consider alignment with the introductory text to the disclosure log template at Annexure A to Part 14 of the FOI Guidelines as amended from time to time.
3.1.2 Does the disclosure log adequately identify the subject matter or content of the documents?
Although the FOI Act does not prescribe the form a disclosure log must take, to assist the public to understand what information has been published, a disclosure log should describe the documents that have been released. This description should allow members of the public to understand what the documents contain so they can make an informed decision about whether to download or request a copy of the document.
For the purpose of these reviews, a disclosure log adequately identifies the subject matter or content of a document where it contains:
- the date the document was given to the FOI applicant
- a description of the content of the document
- where the document is not published, a description of the document type.
Findings
- All reviewed agencies include some information identifying the subject matter or content of documents on their disclosure logs. However, descriptions vary in the amount of detail provided, from a single sentence to the full scope of the FOI request.
- In some disclosure logs, information about the subject matter or content of documents is split between the disclosure log landing page and the individual disclosure log entry, making it difficult to identify the content of the documents.
- In 2019, 36 reviewed agencies (95%) included a date on their disclosure log, with 24 reviewed agencies (63%) specifying that the date on the disclosure log was the date on which access to the documents was given. Six reviewed agencies (16%) specified that the date on the disclosure log was the date of publication. Only 2 agencies (5%) included both a date of release and a date of publication.
- In the 2021 review, 34 of the 35 reviewed agencies include a date on their disclosure log (97%). Twenty-one reviewed agencies (60%) specify that the date on the disclosure log is the date on which access to the documents was given. Seven reviewed agencies (20%) specify that the date on the disclosure log is the date of publication. Five agencies include a date on their disclosure log but do not state whether it is the date of publication or the date on which access to the documents was given. Two agencies include both a date of release and a date of publication.
Recommendations
- Agencies and ministers should clearly describe documents published on their disclosure log and include:
- the date access was given to the document
- the date of publication on the disclosure log
- a clear description of the subject matter of the document that is sufficiently detailed to allow members of the public to make informed choices about accessing previously released government information
- where the document is not published, a description of the document type (for example, email, brief, text message, report etc).
3.1.3 Does the disclosure log include information about the document format?
The FOI Act does not require an agency or minister’s disclosure log to include information about the format of published documents. However, 14.64 of the FOI Guidelines suggests that where documents published on the disclosure log are not available in HTML format, an agency or minister should provide an alternative means to access the information that is both timely and responsive to the needs of the user. For the purpose of this review, information about the format of the documents includes either:
- a reference to the format of the referenced document
- a reference to documents being available in an alternative accessible format.
Findings
- The 2019 review identified that 21 reviewed agencies (55%) referred to providing information as a PDF document and an accessible format on their disclosure log. In the 2021 review, 18 reviewed agencies (51%) referred to providing information as a PDF document and an accessible format on their disclosure log.
- In 2019, 7 reviewed agencies (18%) referred to providing information as a PDF document only. In 2021, 6 reviewed agencies (17%) referred to providing information as a PDF document only.
- In 2019, 10 reviewed agencies (26%) and in 2021, 11 reviewed agencies, (31%) did not refer to providing information in a PDF or any other accessible format.
Recommendations
- Agencies and ministers should be mindful of their accessibility obligations, in particular the Web Content Accessibility Guidelines version 2.1 (WCAG 2.1) and refer to this in their disclosure log introduction.[10]
- When documents are not published in an accessible format, agencies and ministers should include a description of alternative format options that are available.
3.2 Access
This section of the desktop reviews focused on how information was made available to members of the public.
The FOI Act provides 3 ways for agencies or ministers to make information available to members of the public under s 11C(3).
These are:
- making the information available for download from the website
- publishing on the website a link to another website from which the information can be downloaded
- publishing on the website other details of how the information may be obtained.
Subsection 11C(3) of the FOI Act requires agencies or ministers to publish ‘information’ contained in documents that have been released in response to each FOI request, subject to certain exceptions.
The Explanatory Memorandum to the Freedom of Information Amendment (Reform) Bill 2009 states that information is to be published to the public generally on a website, and if it cannot readily be published, the website should give details of how the information may be obtained.
Publication of the documents themselves, wherever practicable, is consistent with the objects of the FOI Act to facilitate access to government information and avoids doubt about whether the disclosure log accurately summarises information released under the FOI Act.
It is the Information Commissioner’s view that it is better practice for agencies or ministers to only publish a description of a document on the disclosure log and ask members of the public to request access if it is not possible to upload documents due to technical impediments, such as the file size, the requirement for specialist software to view the information, or for any other reason of this nature.
For the purpose of this review, the OAIC considered whether:
- the disclosure log provided for the direct download of documents
- the disclosure log provided members of the public with a direct link to another website
- the disclosure log asked members of the public to contact them for access to documents.
For guidance about how agencies and ministers provide access to documents on their disclosure log see 14.52 – 14.60 of the FOI Guidelines.
3.2.1 Are documents released in 2018–19 and 2019–20 available for download from the disclosure log?
Paragraph 11C(3)(a) of the FOI Act states that an agency or minister must publish the information to members of the public generally on a website, by making the information available for download from the website. This is the Information Commissioner’s preferred option for providing access to information on an agency or minister’s disclosure log.
Findings
- In 2019, 18 reviewed agencies (47%) made all entries on their disclosure log in 2018–19 available for download from their disclosure log.
- In 2021, 21 reviewed agencies (60%) made all entries on their disclosure log in 2019–20 available for download from their disclosure log.
3.2.2 Are documents released in 2018-19 and 2019–20 available by direct link to another website?
Paragraph 11C (3)(b) of the FOI Act states that an agency or minister may publish the information to members of the public generally by publishing on their disclosure log a link to another website from which the information can be downloaded.
Findings
- In both 2019 and 2021, 2 reviewed agencies (5%) provided members of the public with a link to another website to access documents.
- One agency has a website, separate to its disclosure log, and makes all entries on its disclosure log available for download from this website.
- One agency provides a link to the Right to Know website for access to documents released in response to requests made through the Right to Know website.
3.2.3 Does the disclosure log ask members of the public to contact them for access to documents?
Paragraph 11C(3)(c) of the FOI Act states that agencies or ministers may publish information to members of the public generally on a website by publishing details of how the information may be obtained.
As outlined above, it is the Information Commissioner’s view that it is better practice that agencies or ministers only publish a description of a document on the disclosure log and ask members of the public to request access if it is not possible to upload documents due to technical impediments, such as the file size, the requirement for specialist software to view the information, or for any other reason of this nature. In these circumstances it may be preferable for members of the public to contact the agency to discuss provision of access in another form.
Proactively making the information available for direct access will reduce the amount of time and resources required to respond to disclosure log inquiries, avoid ‘double handling’ previously decided information and provide access to documents at the lowest possible cost, consistent with the objectives of the FOI Act.
Findings
- One agency publishes a decision and schedule of documents and asks members of the public to contact them for access.
- In 2019, 14 reviewed agencies (37%) required members of the public to contact them for access to all entries on their 2018-19 disclosure log. The 2021 review identified that 12 reviewed agencies (34%) require members of the public to contact them to access all entries on their 2019-20 disclosure log.
- Four reviewed agencies (11%) required members of the public to contact them for access to some entries on their 2018-19 disclosure log. Two agencies (6%) require members of the public to contact them for access to some entries on their 2019-20 disclosure log.
Recommendation
- Consistent with better practice, agencies and ministers should seek to make all documents released in response to FOI requests available for download from the disclosure log or another website, subject to applicable exceptions.
3.3 Charges
This section of the desktop review focused on how information about charges is conveyed to members of the public.
Subsection 11C(4) states that an agency or minister may impose a charge for accessing the information only if:
- the person does not directly access the information by downloading it from the website (or another website) and
- the charge is to reimburse the agency for a specific reproduction cost, or other specific incidental costs, incurred in giving the person access to that particular information.
Further, s 11C(5) provides that agencies and ministers must publish on their website details of any charge in the same way as the information is published on the disclosure log. At 14.69 of the FOI Guidelines it is recommended that this should include the categories of information to which a charge applies and an explanation of the charge.
Whether an agency or minister provides access to documents or asks members of the public to contact them is also relevant to whether a charge is imposed. An agency or minister asking members of the public to contact them for access will be more likely to need to impose reproduction or incidental costs than an agency which publishes documents. This is noted in 14.32 of the FOI Guidelines which states that publication of documents efficiently facilitates public access and avoids payment of copying and postage costs. However, an agency or minister publishing documents is required to include information about any charge that might apply where documents are provided in hardcopy or an alternative format.
In determining whether to charge members of the public for access to documents on their disclosure log, agencies and ministers should have regard to the objects of the FOI Act, in particular the ‘lowest reasonable cost’ object in s 3(4).
For the purpose of this review, the OAIC considered whether:
- the disclosure log identifies that a charge may apply
- the amount of the charge is published on the disclosure log or agency website.
Guidance about imposing a charge for access to disclosure log information can be found at 14.67 – 14.69 of the FOI Guidelines.
3.3.1 Does the disclosure log identify that a charge may be imposed to meet agency costs?
Paragraph 11C(4)(b) of the FOI Act states that an agency or minister may impose a charge to provide information in another form if the charge is to reimburse the agency for a specific reproduction or incidental costs in giving access to the documents.
Findings
- In 2019, 15 reviewed agencies (39%) identified in the introduction to their disclosure log that a charge may be imposed to meet reproduction costs.[11]
- In 2021, 10 reviewed agencies (29%) identified in the introduction to their disclosure log that a charge may be imposed to meet reproduction costs.[12]
- One agency specified that it does not charge for providing access to documents on its disclosure log.
3.3.2 Are the amounts of the charge published?
Subsection 11C(5) of the FOI Act requires that details of any charge that an agency or minister imposes must be published in the same way as the information is published on the disclosure log.
Findings
Only one reviewed agency published the dollar amount of the charge they may impose on their disclosure log.
Recommendation
- Agencies and ministers should include comprehensive information about any charges that may be imposed in providing access to documents that are not directly accessed by downloading from a website or which can be provided in another format. This information should be on the disclosure log landing page or, if that is not appropriate for some reason, in the introduction to the disclosure log. Information about charges should also include the amounts of the charges likely to be imposed. To avoid confusion, if an agency or minister does not impose a charge for providing access to information, their disclosure log should state this.
3.4 Maintenance
This section of the desktop reviews considers how documents are removed from agency and ministerial disclosure logs.
The FOI Act does not specifically require information attached or referred to on a disclosure log to be made available indefinitely. However, information listed on an agency’s disclosure log should be retained even where a document or information attached to a listed item has been removed.
Agencies and ministers should indicate if documents or information attached to a disclosure log listing are intended for removal at a future date (see 14.47 of the FOI Guidelines).
For the purpose of the review, the OAIC considered whether:
- the disclosure log included a timeframe for removal of documents
- the reviewed agency maintained an archive of disclosure log entries.
3.4.1 Does the disclosure log specify a timeframe for the removal of documents?
The FOI Act does not specify a timeframe for the removal of documents from an agency or minister’s disclosure log. However, 14.44 – 14.47 of the FOI Guidelines provides assistance to agencies in managing their disclosure log entries.
Reviewed agencies which specified the removal of documents from their disclosure log included similar wording to that found in 14.47 of the FOI Guidelines. These agencies informed members of the public that entries will stay on the disclosure log for a period of 12 months unless the information has an ‘enduring public value’.
Findings
- In the 2019 review, 12 reviewed agencies (32%) included information specifying a timeframe for the removal of documents from their disclosure logs; 26 agencies (68%) did not provide this information.
- In the 2021 review, 9 reviewed agencies (26%) included information specifying a timeframe for the removal of documents from their disclosure logs; 26 agencies (74%) did not provide this information.
- In the 2019 review, 12 reviewed agencies (32%) maintained an archive separate from their disclosure log. The same number of agencies were observed to maintain a separate disclosure log in the 2021 review.
- Twenty-three of the agencies reviewed in 2019 (61%) retained entries on their disclosure log dating back to at least 2011. In 2021, 14 agencies retained entries on their disclosure log dating back to at least 2011.
- One agency in both 2019 and 2021 did not date entries on its disclosure log, did not maintain an archive and had no information about its archival policy, making it difficult to identify whether and when documents have been removed from its disclosure log.
Recommendations
- Agencies and ministers should provide a way for members of the public to search documents previously released under the FOI Act that are no longer available on their disclosure log. This should include all information necessary for a member of the public to understand what has been released, including the date of release to the FOI applicant, the subject matter, the document type and how access to the document may be obtained (if not directly available from the log).
- Information about how to access archived information should include information about any alternative accessible formats of the documents and any charges that may apply.
- Disclosure log introductions should include information about whether and when documents will be removed from the disclosure log.
4. Summary of recommendations
As a result of the desktop reviews, the Information Commissioner recommends that agencies and ministers should:
- Explain the purpose of the disclosure log and reference their obligations under the FOI Act.
- To enhance accessibility and avoid confusion, include a plain English explanation of their obligations rather than quoting, or only quoting, sections of the FOI Act.
- Include the exceptions to publication under s 11C(1) of the FOI Act in the introduction to their disclosure log. Agencies and ministers should consider alignment with the introductory text to the disclosure log template at Annexure A to Part 14 of the FOI Guidelines as amended from time to time.
- Clearly describe documents published on their disclosure log and include:
- the date access was given to the document
- the date of publication on the disclosure log
- a clear description of the subject matter of the document that is sufficiently detailed to allow members of the public to make informed choices about accessing previously released government information
- where the document is not published, a description of the document type (for example, email, brief, text message, report etc).
- Be mindful of their accessibility obligations, in particular the Web Content Accessibility Guidelines version 2.1 (WCAG 2.1) and refer to this requirement in their disclosure log introduction.
- When documents are not published in an accessible format, include a description of alternative format options that are available.
- Consistent with better practice, seek to make all documents released in response to FOI requests available for download from the disclosure log or another website, subject to applicable exceptions.
- Include comprehensive information about any charges that may be imposed in providing access to documents that are not directly accessed by downloading from a website or which can be provided in another format. This information should be on the disclosure log landing page, or, if that is not appropriate for some reason, in the introduction to the disclosure log. Information about charges should also include the amounts of the charges likely to be imposed. To avoid confusion, if a charge is not imposed for providing access to information, the disclosure log should state this.
- Provide a way for members of the public to search documents previously released under the FOI Act that are no longer available on their disclosure log. This should include all information necessary for a member of the public to understand what has been released, including the date of release to the FOI applicant, the subject matter, the document type and how access to the document may be obtained (if not directly from the log).
- Include information about any alternative accessible formats of the documents and any charges that may apply in relation to access to archived information.
- Include information about whether and when documents will be removed from the disclosure log.
Appendix A – Relevant legislation
11C Publication of information in accessed documents
Scope
1 This section applies to information if an agency or Minister gives a person access to a document under section 11A containing the information, except in the case of any of the following:
- personal information about any person, if it would be unreasonable to publish the information;
- information about the business, commercial, financial or professional affairs of any person, if it would be unreasonable to publish the information;
- other information of a kind determined by the Information Commissioner under subsection (2), if it would be unreasonable to publish the information;
- any information, if it is not reasonably practicable to publish the information under this section because of the extent of any modifications to a document (or documents) necessary to delete information mentioned in paragraphs (a) to (c).
2 The Information Commissioner may, by legislative instrument, make a determination for the purposes of paragraph (1)(c).
Publication
3 The agency, or the Minister, must publish the information to members of the public generally on a website by:
- making the information available for downloading from the website; or
- publishing on the website a link to another website, from which the information can be downloaded; or
- publishing on the website other details of how the information may be obtained.
4 The agency may impose a charge on a person for accessing the information only if:
- the person does not directly access the information by downloading it from the website (or another website); and
- the charge is to reimburse the agency for a specific reproduction cost, or other specific incidental costs, incurred in giving the person access to that particular information.
5 If there is a charge for accessing the information, the agency or Minister must publish details of the charge in the same way as the information is published under this section.
Time limit for publication
6 The agency or Minister must comply with this section within 10 working days after the day the person is given access to the document.
7 In this section, 'working day' means a day that is not:
- a Saturday; or
- a Sunday; or
- a public holiday in the place where the function of publishing the information under this section is to be performed.
Appendix B – Departments of State, agencies and ministers reviewed
Name | 2019 | 2021 |
|---|---|---|
Department of Agriculture[13] | ✓ | ✓ |
Attorney-General’s Department | ✓ | ✓ |
Department of Communications and the Arts[14] | ✓ | – |
Department of Defence | ✓ | ✓ |
Department of Education[15] | ✓ | ✓ |
Department of Employment, Skills, Small and Family Business[16] | ✓ | – |
Department of the Environment and Energy[17] | ✓ | – |
Department of Finance | ✓ | ✓ |
Department of Foreign Affairs and Trade | ✓ | ✓ |
Department of Health | ✓ | ✓ |
Department of Home Affairs | ✓ | ✓ |
Services Australia[18] | ✓ | ✓ |
Department of Industry, Innovation and Science[19] | ✓ | ✓ |
Department of Infrastructure, Transport, Cities and Regional Developments[20] | ✓ | ✓ |
Department of the Prime Minister and Cabinet | ✓ | ✓ |
Department of Social Services | ✓ | ✓ |
Department of the Treasury | ✓ | ✓ |
Department of Veterans’ Affairs | ✓ | ✓ |
Australian Taxation Office | ✓ | ✓ |
Australian Transaction Reports and Analysis Centre | ✓ | ✓ |
Comcare | ✓ | ✓ |
Australian Securities and Investment Commission | ✓ | ✓ |
Australian Federal Police | ✓ | ✓ |
NBN Co Limited | ✓ | ✓ |
IP Australia | ✓ | ✓ |
Australian Skills Quality Authority | ✓ | ✓ |
Office of the Australian Information Commissioner | ✓ | ✓ |
Civil Aviation Safety Authority | ✓ | ✓ |
Australian Competition and Consumer commission | ✓ | ✓ |
Australian Broadcasting Corporation | ✓ | ✓ |
National Disability Insurance Agency | ✓ | ✓ |
Australian Postal Corporation | ✓ | ✓ |
Airservices Australia | ✓ | ✓ |
Australian Public Service Commission | ✓ | ✓ |
Australian Prudential Regulation Authority | ✓ | ✓ |
Minister for the Environment | ✓ | ✓ |
Prime Minister of Australia | ✓ | ✓ |
Australian National University | ✓ | ✓ |
Appendix C – Topics explored in review
1 Does the agency use the OAIC Disclosure Log icon to direct users to the log (old or new)?
2 Does the agency include text which introduces the disclosure log?
3 Does the disclosure log adequately identify the subject matter or content of the documents?
4 Does the disclosure log include information about the format of the documents (e.g. released in PDF)?
5 Are 2018-19 documents attached and accessible via the disclosure log?
6 Are 2018-19 documents available via a direct link to another website?
7 Does the agency provide details on identifying the document and how to access them?
8 What percentage of disclosure log entries in 2018–19 require members of public to contact the agency for access?
9 What percentage of disclosure log entries in 2018–19 require members of public to contact the agency for access?
10 Does the disclosure log specify a timeframe for removal of documents?
11 Does the disclosure log identify that fees/charges are to meet agency costs?
12 Are the dollar amounts of the fee/charges published on the agency website/disclosure log?
13 Does the agency impose a fee/charge for accessing documents via the disclosure log outside reproduction costs?
14 What is the earliest entry on the disclosure log?
15 What is the latest entry on the disclosure log?
16 Number of disclosure log entries in 2018–19
17 Number of FOI requests (other) granted in full or in part by the agency in 2018-19
18 Comments
Footnotes
[1] OAIC, Annual Report 2019–20, OAIC, 2020, accessed 13 September 2021, p 152.
[2] One additional agency that did not make documents available for download in 2019–20 has now made documents available for download from 1 January 2021.
[3] Australian Information Commissioner Act 2010 s 8(g).
[4] Australian Information Commissioner Act 2010 s 8(d).
[5] Freedom of Information (Disclosure Log– Exempt Documents) Determination 2018.
[6] Australian Information Commissioner Act 2010 s 8(g).
[7] On 5 December 2019, an Administrative Arrangements Order was issued that changed the functions and composition of some Departments of State. See Administrative Arrangements Order made on 5 December 2019 with effect from 1 February 2020.
[8] This list was compiled on 1 October 2019 and reflacts the Departments of State in existence at that time. The 2021 review considered 35 agencies – 14 Departments of State and 21 agencies (the Department of Human Services was established as Services Australia, an Executive Agency within the Social Services Portfolio).
[9] As at 15 October 2019.
[10] Web Accessibility Initiative (WAI), Web Content Accessibility Guidelines (WCAG) 2.1, WAI, 2018, accessed 1 September 2021.
[11] Of the 15 reviewed agencies who identified that a charge may be imposed in 2019; 6 (40%) provided access to all entries on their 2018–19 disclosure log, 7 (47%) asked members of the public to contact them for access to all entries on their 2018–19 disclosure log and 2 (13%) asked members of the public to contact them for access to some entries on their 2018–19 disclosure log. Of the 23 reviewed agencies who did not identify that a charge may be imposed, 14 (61%) provided access to all entries on their disclosure log, 7 (30%) asked members of the public to contact them for access to all entries on their disclosure log and 2 (9%) asked members of the public to contact them for access to some entries on their 2018–19 disclosure log.
[12] Of the 10 reviewed agencies who identified in 2021 that a charge may be imposed; 6 (60%) provided access to all entries on their 2019–20 disclosure log, 3 (30%) asked members of the public to contact them for access to all entries on their 2019–20 disclosure log and 1 (10%) asked members of the public to contact them for access to some entries on their 2019–20 disclosure log. Of the 25 reviewed agencies who did not identify that a charge may be imposed, 15 (60%) provided access to all entries on their disclosure log, 9 (36%) asked members of the public to contact them for access to all entries on their disclosure log and 1 (4%) asked members of the public to contact them for access to some entries on their 2019–20 disclosure log.
[13] Renamed Department of Agriculture, Water and the Environment following MoG changes.
[14] Consolidated following MoG changes. Now Department of Infrastructure, Transport, Regional Development and Communications.
[15] Renamed Department of Education, Skills and Employment following MoG changes.
[16] Consolidated following MoG changes. Now Department of Education, Skills and Employment.
[17] The MoG changes resulted in the creation of the Department of Agriculture, Water and the Environment consolidating the environment functions from the Department of the Environment and Energy. The creation of the Department of Industry, Science, Energy and Resources also resulted in the consolidation of the energy functions from the Department of the Environment and Energy and small business functions from the Department of Employment, Skills, Small and Family Business.
[18] Following MoG changes the Department known as Services Australia was established as a new Executive Agency, within the Social Services Department. As a result, the 2019 review considered 20 agencies and the 2021 review considered 21 agencies.
[19] Renamed Department of Industry, Science, Energy and Resources following MoG changes.
[20] Renamed Department of Infrastructure, Transport, Regional Development and Communications following MoG changes.
