FOI at the Department of Human Services

Report of an own motion investigation

Executive summary

The Australian Information Commissioner, Professor John McMillan, commenced this own motion investigation in response to negative trends identified in the outcome of requests made to the Department of Human Services (the department) in recent years under the Freedom of Information Act 1982 (the FOI Act).

These trends were apparent after analysis of statistics reported by the department under s 93 of the FOI Act, and in concerns raised by complainants and IC review applicants with the Office of the Australian Information Commissioner (OAIC). The OAIC observed the following changes between 2011–12 and 2013–14:

• an increase in the department’s use of the FOI Act practical refusal mechanism, from 33 occasions in 2011–12 to 777 in 2013–14
• a decline in the number of FOI requests to which access to documents was given in full, from 58% of requests in 2011–12 to 26% in 2013–14
• an increase in the number of applications for Information Commissioner (IC) review of the department’s access refusal decisions, from 49 IC review applications in 2011–12 to 95 in 2013–14.

The OAIC has received complaints about changes in the department’s FOI practices from individual applicants and representative organisations, in particular, members of the National Welfare Rights Network (NWRN). NWRN members complained that they could no longer obtain Centrelink information about their clients that they had routinely and quickly received via FOI in the past. The NWRN members said this was seriously impeding their ability to assist their clients, for example, in investigations initiated by the department or in querying or challenging adverse departmental decisions.

The overall impressions arising from the above information and statistical analysis were of increased complexity in the department’s FOI practices and less information being released under the FOI Act than previously. As a consequence, the Commissioner decided to commence an investigation on 7 October 2014 to explore those impressions and identify the cause of any negative changes in FOI processing.

A more complex and balanced picture of FOI processing in the department has emerged during the course of this own motion investigation. The explanation in part is that changes occurred in how the department handles FOI requests since 2011–12, particularly large requests and requests involving third party information.

While a lower proportion of FOI requests finalised by the department result in information release than previously, the department’s performance has improved in other areas. For instance, in the 2014–15 reporting year to date, the department says that it met statutory processing deadlines for 97% of FOI requests. This improved timeliness occurred in the context of an increasing number of requests and without a significant increase in staffing levels. The department also says that its decisions and processes are now more in line with the terms of the FOI Act. Under its earlier approach, the department rarely utilised the practical refusal mechanism in the Act, and a consequence was that a small number of requests consumed a large proportion of departmental FOI resources.

The department has explained that the reduced proportion of FOI requests that led to document release is a result of a conscious effort to divert FOI requests to informal ‘administrative access’ schemes where possible. Although these requests are recorded as ‘withdrawn’ in the department’s reported statistics, in many of these cases the applicant has in fact received some information, though not via FOI. The Information Commissioner has promoted the use of administrative access arrangements by agencies.

Nonetheless, based on the information obtained during this investigation, many of the concerns raised by the NWRN and other departmental FOI stakeholders are genuine. The department’s approach to FOI has caused an increasing number of its FOI customers to seek IC review of the department’s decisions or to make a formal complaint to the OAIC.

The department’s focus on improving its technical compliance with the procedural, exemption, and consultation provisions in the FOI Act has, in the Commissioner’s view, had unintended consequences which are inconsistent with the pro-disclosure objectives that lie at the heart of the FOI Act.

The department’s high reliance on the practical refusal mechanism in the Act is also a concern, particularly when a practical refusal decision may preclude an individual from obtaining access to a high volume of information collected by the department that is relevant to a departmental decision that has a significant adverse impact on that individual.

Under arrangements contained within the Freedom of Information Amendment (New Arrangements) Bill 2014, which is currently before Parliament, the jurisdiction to undertake external merit review of FOI decisions will move exclusively to the Administrative Appeals Tribunal (AAT). Current trends in the department’s FOI processing could lead to one or more of a number of foreseeable outcomes:

• a reduction in access to information for applicants who are unwilling to appeal to the AAT against an access refusal decision
• an increase in the number of department decisions that are appealed to the AAT, as many department clients may be exempt from AAT filing fees[1]
• an increase in requests to the department under the Privacy Act 1988 (Cth) for access to personal information, because of the simple request and complaint procedures in the Privacy Act
• an increase in complaints to the Commonwealth Ombudsman about the department’s FOI processing.

The Commissioner considers that the department could, by addressing three key themes in this report, improve FOI processing by assisting applicants to obtain information and reducing the rate at which its decisions become subject to review. The three themes in the recommendations aim to assist the department to:

• promote a pro-disclosure culture amongst departmental staff, consistent with the objects of the FOI Act and the personal information access provisions of the Privacy Act
• simplify the FOI experience for the department’s customers and provide greater assistance to prospective FOI applicants
• improve the administration of the practical refusal process, with the objective of using the s 24AB consultation process to negotiate a successful outcome to each FOI request.

The Commissioner is confident that the department can implement these recommendations without losing the benefits gained by improving the technical and legal capabilities of its FOI unit.

The analysis and findings in this report are relevant more generally to FOI processing in Australian Government agencies. While the department is in the exceptional position that it receives more FOI requests than any other agency (except the Department of Immigration and Border Protection), the FOI processing environment analysed in this report is not dissimilar to that in many agencies. Circumstances that have given rise to some of the FOI processing challenges discussed in this report include: the increased volume of information held by the department in a digital setting that may be relevant to an individual customer; the importance of that information to a customer when querying adverse departmental action; a possible need for third party consultation before information is released; and the department’s objective of striking an effective balance between encouraging administrative access and FOI Act requests for information.

The general findings of this investigation should be heeded by all agencies. One is the importance of establishing an internal culture and procedures that (to quote the FOI Act objective) ‘facilitate and promote public access to information, promptly and at the lowest reasonable cost’ (s 3(4)).

Another is that small practical steps can make an important difference in meeting that objective. The recommendations in this report contain many specific suggestions on how the department (and potentially other agencies) could improve FOI Act processing.

A third general finding is that it is essential that agencies adopt performance measures for gauging whether the reasonable expectations of FOI applicants are being met. This report refers at many points to statistics about FOI processing in the department and draws comparisons with other agencies and with the statutory benchmarks in the FOI Act. While these metrics can never provide a full picture of the challenges that face an agency in FOI administration, they are an important starting point and can prompt a deeper and valuable analysis.

The Commissioner and the OAIC acknowledge and appreciate the assistance to this investigation provided by officers of the department’s FOI and Information Release Branch. The investigation was conducted to a tight timeframe, yet the department readily engaged with the OAIC, and provided comprehensive submissions and supporting material. That material displayed the professional way the department has approached its FOI Act responsibilities in its internal manuals, staff training, procedures, correspondence, supervision and structures.

The investigation was also greatly assisted by submissions received (on invitation) from some NWRN members and the Commonwealth Ombudsman. Those submissions pointed to the practical difficulties some applicants faced in making information access requests to the department and the importance of the information requested to the applicants.

Recommendations

Improvements suggested by the department

The department informed the OAIC after the commencement of this own motion investigation that it was in the process of implementing three enhancements which addressed some of the issues raised in the issues paper:

1. We will add to our existing guidance provided to all department staff by developing a training package and commencing an assistance phone line manned by FOI staff to ensure all departmental staff are confident in how to assist customers to receive documents administratively in a practical way thereby reducing, wherever possible, the need for customers to make formal FOI requests.
2. We will continue to analyse random samples of FOI matters to look at the way we communicate with our clients and develop practical improvements to our processes (including template letters).
3. We will work with the NWRN to assist them to develop practical guidance for members of NWRN about how to make requests which do not involve a practical refusal reason.[2]

The department also advised the OAIC that it had recently amended its processes so that all formal FOI correspondence is now cleared by a senior (executive level) member of the FOI team.

Those enhancements are a positive response, consistent with the statement from the department that it is ‘committed to transforming and improving how we deliver services to our clients, including FOI services’. However, the Commissioner’s observation is that the proposed enhancements and revised clearance processes are directed primarily to improving technical compliance and decision making consistency, rather than being directed towards improving FOI outcomes.

The Commissioner’s central concern, reflected in the findings and recommendations in this report, is that the department needs to promote a stronger pro-disclosure culture within its FOI unit that is attuned to its customer service commitments and the FOI Act objective of providing prompt and inexpensive access to information upon request. It is not apparent from this investigation that the department’s understanding and compliance with formal FOI Act processing requirements is an area of significant concern. The problem, rather, is that a focus on formal compliance has, in the Commissioner’s view, overshadowed other elements of a responsive pro-disclosure culture.

Increased internal compliance controls such as those suggested by the department may improve the department’s success rate at appeal. An equally important objective is to improve customer service, thereby reducing the need for FOI complaints and review applications.

This report contains the Commissioner’s suggestions and recommendations to the department to promote that broader information access culture, and to further the objects of the FOI Act and the right of individuals to access their own personal information under the Privacy Act.

Summary of recommendations

The Commissioner’s recommendations in this report are grouped into three themes that aim to assist the department to:

• promote a pro-disclosure culture among departmental staff, consistent with the objects of the FOI Act and the personal information access provisions of the Privacy Act
• simplify the FOI experience for the department’s customers and provide greater assistance to prospective FOI applicants
• improve the administration of the practical refusal process, with the objective of using the s 24AB consultation process to negotiate a successful outcome to each FOI request.

Promote a pro-disclosure culture

Recommendation 1

The Information Commissioner recommends that the department take the following action to promote a stronger pro-disclosure culture in administering FOI and information access requests:

• the Secretary, or relevant Deputy Secretary with responsibility for FOI and information access, issue a statement to FOI and information access officers promoting the need for a strong pro-disclosure culture in the department that is customer-focussed and is guided by the objects of the FOI Act
• the department’s FOI Procedures Manual and FOI training material be amended to refer to the objects of the Act and the important role that FOI can play in providing necessary information to customers of the department
• the department track and analyse the outcome of FOI requests and monitor rates of disclosure and refusal relative to other agencies.

Recommendation 2

The Information Commissioner recommends that the department assess the feasibility of measuring customer-satisfaction with the department’s FOI service and using this as a measure of performance for the FOI unit.

Simplify FOI customer experience

Recommendation 3

The Information Commissioner recommends that the department add a clear statement to its FOI Procedures Manual that procedural requirements (such as an applicant giving a notice in writing, or responding within a specific timeframe) can and should be adjusted for clients who have difficulty complying with those processes.

Recommendation 4

The Information Commissioner recommends that the department consider and implement steps for improving communication with FOI applicants, including by:

• providing training to FOI officers in plain-English writing principles, and encouraging use of those principles in departmental FOI communications
• obtaining customer feedback on FOI communications and published information to ensure it is accessible to the department’s client groups
• incorporating early telephone contact into its FOI procedures, particularly during any s 24AB request consultation process.

Recommendation 5

The Information Commissioner recommends that the department revise its FOI web page, including by:

• reviewing the content of the web page
• making the FOI request form available on the web page.

Recommendation 6

The Information Commissioner recommends that the department take steps to assist applicants to make clearer and more manageable requests, including by:

• providing a telephone contact number on the website and in relevant correspondence for prospective FOI applicants
• publishing a list of categories of frequently released documents (and documents that are typically withheld from release); this list could refer applicants to administrative access channels where these are available for particular categories of documents
• reviewing any published list every twelve months
• finalising the draft Consultation Request Process form and making it available to prospective FOI applicants, including by incorporating it in the department's FOI request form.

Recommendation 7

The Information Commissioner recommends that the department review its FOI and administrative access arrangements, and suggests that:

• an applicant who has made a straightforward FOI request for access to a non-sensitive document is not redirected unnecessarily to an administrative access path
• the department adopt a ‘one request, one release’ approach where possible, rather than splitting requests into administrative and FOI components
• the department’s administrative access arrangements are consistent with APP 12 requirements
• the administrative access arrangements are published on the department’s website.

Improve the practical refusal process

Recommendation 8

The Information Commissioner recommends that the department monitor its reliance on the practical refusal provisions in the FOI Act in the following ways:

• by including statistics on practical refusal actions in the department’s Executive FOI Report
• aiming to bring its use of the practical refusal provisions (currently 17% of all requests) closer to the rate seen across the Commonwealth (6% of all requests)
• continuously reviewing its methods for estimating processing times for the purpose of s 24AA
• recording the outcome of practical refusal request consultation processes and using this as a performance metric for the FOI team.

Recommendation 9

The Information Commissioner recommends that the department provide better assistance to applicants in a request consultation process by:

• amending its FOI Procedure Manual to include guidance for FOI officers about how to assist applicants to revise the scope of an FOI request so that a practical refusal decision will not be made
• modifying its procedures to require telephone contact where possible before a request consultation notice is formally issued, so that an FOI officer can better understand what information the applicant seeks access to and can assist the applicant to make a revised request.

Recommendation 10

The Information Commissioner recommends that when deciding whether a particular FOI request would ‘unreasonably divert’ the resources of the department from other operations, subject to s 24AA(3), the department have regard to relevant surrounding circumstances, such as the volume of material that may form part of an individual’s case file, and whether disclosure of the documents will cast light on a decision that has a significant impact on an applicant.

Recommendation 11

Given the nature of the department’s work, the Information Commissioner recommends that the department should expect and plan for a small number of large requests and should not expect that all requests can suitably be processed within an estimated 40 hours.

Recommendation 12

The Commissioner recommends that the Serious Non-Compliance Branch and the FOI and Information Access Branch of the department work together to identify the cause of substantial FOI processing times, and implement measures at the time of information collection, creation, and storage that will facilitate efficient processing of requests.

Recommendation 13

The Information Commissioner recommends that the department continue to consult with the NWRN to understand the information that it requires to assist its clients, and to develop responsive processes to help the NWRN obtain that information.

Background to investigation

Decision to conduct investigation

The Australian Information Commissioner decided to conduct this own motion investigation to identify the cause of an apparent change in FOI processing standards at the Department of Human Services between the 2011–12 and 2013–14 reporting years.

The OAIC became aware of this change by observing issues that appeared in an increasing number of IC review applications and complaints, and through analysis of statistics reported by the department under s 93 of the FOI Act.

Issues identified in complaint and review applications

A significant factor in the Commissioner’s decision to conduct this investigation was an increase in the appeal rate of the department’s FOI decisions, and criticisms made of the department by IC review applicants and complainants.

An increase in the department’s FOI review rate is apparent both in absolute terms, and as a proportion of all IC review applications received by the OAIC.

The OAIC received 49 applications for IC review regarding the department in 2011–12. This made up 11% of all requests for IC review lodged in that year. The number of IC review applications against departmental decisions rose to 81 in 2012–13 (16% of all applications), and 95 in 2013–14 (18% of all applications). By comparison, the department made approximately 12% of all FOI decisions in the Commonwealth in 2013–14.

From 2012–13 onwards, the OAIC received regular comments about detrimental changes in the department’s FOI practice from individual applicants and representative organisations. Most significantly, the OAIC received a series of IC review applications and complaints from members of the NWRN, the peak community organisation in the area of social security law, policy and administration. Its members are community legal centres and organisations whose role is to provide disadvantaged people with free information, advice, education and representation in the areas of social security and family assistance.

Members of the NWRN complained to that OAIC that requests they had previously made on a regular basis to Centrelink to assist their clients were no longer being processed quickly nor successfully. NWRN members complained that many of their requests were said by the department to be too large, and to trigger the FOI Act’s practical refusal mechanism, while in contrast prior to 2013 very similar requests had been processed expeditiously.

Statistical trends

In 2011–12, the department finalised 3735 requests, 88% of which released documents (in part or in full). In contrast, in 2013–14 the department finalised 4445 requests, 62% of which released documents. This compares unfavourably to other departments that receive a large number of FOI requests that predominately concern personal information (the Department of Immigration and Border Protection, and the Department of Veterans’ Affairs).

Between 2011–12 and 2013–14, the department increased its use of the practical refusal mechanism in s 24AB of the FOI Act approximately twenty-fold: from 33 occasions in 2011–12, to 777 occasions in 2013–14. This contributed significantly to an increase in the use of s 24AB across all Australian Government agencies. Across the Australian Government, s 24AB was used 314 times in 2011–12, and 1757 times in 2013–14.

The Commissioner’s decision to launch this investigation was also influenced by the appearance of a growing ‘backlog’ of requests at the department. However, the own motion investigation revealed that the statistical information the department reported in relation to request numbers in 2013–14 under s 93 of the FOI Act was incorrect, and in fact there was no backlog of requests.

Decision to investigate

The overall impression caused by the above issues was that since 2011–12, FOI outcomes at the department had changed, with less information being released under the FOI Act. This informed the Commissioner’s decision to commence an investigation on 10 October 2014.

Although one of the issues (the appearance of a backlog) was discovered early in the own motion investigation to be an error in the department’s reported statistics, the Commissioner decided to continue the investigation on the basis that other issues warranted investigation.

Investigation process

On 7 October 2014, the Commissioner notified the department that he was commencing an own motion investigation into the department’s FOI handling under s 69(2) of the FOI Act. The Commissioner provided an issues paper to the department which set out preliminary views and concerns about the department’s FOI practices, and drew the department’s attention to a number of particular IC review and complaint case studies.

On 13 October 2014, officers of the OAIC met with the department to discuss the investigation and to answer questions regarding the issues paper. At this meeting, the department advised that the statistical information submitted to the OAIC for the 2013–14 reporting year was incorrect, and undertook to provide corrected information as soon as possible. The OAIC agreed to send more detailed information about the IC review applications and complaints that had informed the decision to commence an investigation.

On 20 October 2014, DHS provided corrected statistical information to the OAIC, and the OAIC supplied more detailed information about individual cases of concern to the department.

To obtain input from departmental stakeholders, on 21 October 2014 the OAIC wrote to each of the 5 organisations that in the last 18 months had made multiple applications for review and complaints to the OAIC on behalf of departmental clients. These organisations were all members of the NWRN. The OAIC also wrote to the Commonwealth Ombudsman to advise it of the own motion investigation, and to request the Ombudsman’s input. Submissions were provided from the Ombudsman and three members of the NWRN:

• North Australian Aboriginal Justice Agency (NAAJA).
• NSW Welfare Rights Centre (WRC).
• Welfare Rights and Advocacy Service (WRAS).

On 18 November 2014, the department provided a response to the issues paper. The department provided detailed commentary on each of the case studies referred to in the issues paper, and provided a range of supporting documents. The response described changes to the department’s practices and organisational structures since 2011–12.

The Commissioner considered the information provided by the department, and on
2 December 2014, provided these investigation results to the department.

The department responded on 10 December 2014 and advised that it would implement the Commissioner’s recommendations. A copy of the department’s response is included at Appendix A.

The Commissioner notes the relatively short timeframe over which this investigation has been conducted and appreciates the department’s engagement with the process, its comprehensive response to the issues paper and its assistance through compliance with relatively short timeframes for responses.

Material considered

The OAIC considered the following material in the course of this own motion investigation:

• Case studies of 59 IC review applications and 22 FOI complaints made to the OAIC about the department
• The department’s response to each case study
• The department’s FOI Procedure Manual
• Various template letters
• Current and historical organisational and FOI team organisational charts
• The department’s FOI training material
• The department’s FOI webpage
• Internal contact sheets used by FOI officers
• Documents provided by the department to NWRN members explaining administrative access
• A range of material about the department’s decision making process:
  • Departmental decision making ‘trees’
  • E-reference guides
  • Guidance to staff
• A submission from the department
• Three submissions from members of the National Welfare Rights Network
• A submission from the Commonwealth Ombudsman.

Investigation results

The issues paper grouped the Commissioner’s concerns about FOI administration at the department into three categories:

1. Undue legal and technical formality in interpreting and processing FOI requests
2. Accessibility of the department's FOI services, particularly to clients with specific needs
3. Increased use of the FOI Act practical refusal mechanism.

The issues paper also invited comment about changes to the department’s FOI processes and organisational structure between 2011–12 and 2013–14.

The department cooperated with the Commissioner’s investigation and provided a comprehensive response on each issue.

Promoting a pro-disclosure approach

The Commissioner’s issues paper expressed a preliminary view that the department’s approach to FOI was overly focused on compliance with the exemption and procedural provisions of the FOI Act, resulting in outcomes that were contrary to the pro-disclosure objects of the Act.

Framework for evaluating the department’s approach

The Better Practice Guide for Commonwealth agencies administering the Freedom of Information Act 1982 was published as part of a review of the operation of the FOI Act conducted by Dr Allan Hawke AC in 2013. The Guide was prepared in consultation with fourteen Australian Government agencies with significant FOI workloads. The Better Practice Guide documents three main approaches to administering the Act:

FOI administration can be approached from a range of perspectives. One approach is to focus on the intent of the FOI Act through its objects which include providing access to documents at the lowest reasonable cost. Taking this approach maximises provision of information, but may lead to overlooking mechanisms that support the agency in trying to balance competing priorities, including competing FOI requests - for example, practical refusal processes (see Chapter 4) and the charges regime (see Chapter 7).

Second, FOI can also be approached in a technical way which focuses on the letter of the law. This generally leads the agency to take a firm stance on things like charges and the exemption provisions. While this has the advantage of creating greater certainty around how FOI requests will be handled, it may also lead to inflexibility and can be at odds with the spirit and objects of the FOI Act.

The third is to take a win-win attitude, or a 'give a little, get a little' approach. There are many opportunities for negotiation in processing an FOI request, around issues like scope or size of the request, imposition of processing charges, handling information about third parties, time frames for finalising the request, and timing and form of release and publication of documents. Positive relationships with FOI applicants can significantly enhance an agency's experiences and lead to better overall outcomes for the FOI user. Treating all applicants fairly and consistently is crucial.[4]

The Guide notes that most agencies apply these approaches to differing degrees, depending upon the circumstances of individual requests. But culture, leadership, agency processes, and even individual FOI decision makers’ preferences can result in one or more of the approaches being favoured.

The approaches outlined in the Guide provide a useful framework for considering the department’s approach to FOI.

Changes to organisational structure at the department

Prior to the 2012–13 reporting year, the Ombudsman, Privacy and FOI (OPFOI) Branch in the department was responsible for the FOI function under the leadership of a National Manager. During 2012–13, the department established a Strategic Information Management Legal Branch, under the leadership of a General Counsel, staffed primarily by legal officers. This branch worked in tandem with the OPFOI Branch. The Strategic Information Management Legal Branch was also responsible for handling the bulk of the department’s FOI review workload.

During 2013–14, these two branches were superseded by a dedicated FOI and Information Release Branch under the leadership of a General Counsel (the department’s privacy and Ombudsman functions were moved to two other branches within the department’s legal division, each under the leadership of a General Counsel).

The department provided the OAIC with a copy of its FOI team organisational chart and staffing levels at 27 September 2012 and 13 November 2014. The staffing level has remained relatively stable, although the composition of the team now contains a higher proportion of executive level staff. A small number of legal officer positions in the FOI team are responsible for processing complex and ‘non-personal information’ FOI requests, and two of the three EL2 positions in the team are legal positions.

Comments from FOI users

Some of the organisations consulted by the OAIC provided commentary suggesting a changed approach to FOI by the department. NAAJA described a changed experience using FOI at the department:

NAAJA has been making FOI requests on behalf of our clients to DHS since 2008. Before early 2013, we had no experience of an FOI request being refused. Third party information was redacted where necessary. Documents were generally provided within or close to the 30 day period and if FOI needed more time they would phone us and negotiate this. ...

FOI requests are now processed by lawyers rather than trained FOI staff with experience of the Centrelink system. ... We are concerned that the lawyers do not have a good understanding of the DHS file/document management systems and this impacts on the quality of the decisions made under FOI. ...

Since 2013, we have received a number of responses in which the DHS states that it intends to refuse the requests under s 24AB of the FOI Act 'on the basis that the work involved in processing the request would substantially and unreasonably divert the resources of the department from its other operations'. Often these letters are sent after a request for a 30 day extension to process the request. We have then been given the opportunity to 'revise the scope' of our FOI request. After doing this, we receive a more limited range of documents some three or more months later.

[W]e received detailed letters, up to 10 pages in length, which are legalistic, dense and not drafted in plain English. Considerable resources have obviously been expended by DHS in drafting, approving and finalizing these letters – we consider that scarce resources could be better spent by communicating with the applicant to identify what information is required, and producing the information in a timely fashion.[5]

WRAS commented on changes in the department’s decision letters:

Our centre has noticed that since April 2013 the decision letters sent by DHS FOI officers have changed significantly. We have struggled to understand the meaning of some letters. There has been a marked increase in length, complexity of language and use of what appears to be chunks of text that have been 'cut and pasted' and at the same time there has been a marked reduction in the number of documents released to a client.[6]

The department’s current approach

Prior to 2012, the department had a higher information release rate, made minimal practical refusal decisions, and experienced lower rates of FOI review. As noted in the background section above, the overall outcome profile of the department’s FOI work has changed, expressed as lower rates of information release under FOI and increased use of the FOI Act's practical refusal mechanism.

The Department’s FOI Procedures Manual states that legal obligations of the department are the paramount consideration in FOI processing. The following introductory statement appears on page 1 of the department’s FOI procedural manual (emphasis in original):

It may be appropriate in certain circumstances, to diverge from the procedures in this Manual. This should only be done following discussions with the relevant General Counsel. It is unacceptable to diverge from the procedures in this Manual if this results in the statutory requirements of the Freedom of Information Act 1998 (FOI Act) (sic) not being met. The department’s obligations under the FOI Act are the paramount consideration in processing any FOI request.

The Procedures Manual does not refer to the objects of the Act. Similarly, FOI training packages provided by the department to the OAIC in the course of this investigation consider in detail the procedural and exemption provisions of the FOI Act. Only one (the most recent training program, dated August 2014) explicitly refers to the broader role of FOI and to the objects of the FOI Act, providing necessary context for the procedural and exemptions provisions.

In its response to the issues paper, the department said:

The department is flexible and pragmatic in the way it interprets and processes FOI requests. Below we explain our processes where requests which are unclear or which may not be valid are escalated for consideration by a more senior officer. However, given the department’s large FOI workload, it is not possible for every FOI matter to be considered by a senior officer. As for any high volume decision-making environment, we rely on policies and procedures to assist junior officers to make decisions and process requests.

We have considered OAIC’s concern that the department engages in undue legal formality in the interpretation and processing of FOI requests. The department takes the view that FOI decision-making is a legal process and that our decisions must comply with the FOI Act.

FOI decision-making, like many functions of government, operates under statute. And the FOI Act confers important information access rights on members of the community that are legally enforceable. But that is not the whole picture.

The FOI Act operates within and complements a broader service culture within government. Providing information upon request to members of the public must be informed by principles of legality, but it must also be guided by customer-service principles and the objects of the FOI Act that encourage public participation, scrutiny, discussion, comment and review of government activity. In a high volume decision-making environment where senior officers cannot review each action of every staff member, the principles expressed in policies, procedures and training will have an important and guiding influence.

The Commissioner’s impression formed in this investigation is that the department’s approach has moved from a predominately pro-disclosure and outcome-based focus, towards an emphasis on technical and legal compliance. This is indicated by:

• the substantial increase in the use of the practical refusal mechanism in the Act
• the tone and emphasis of training material and procedural documents
• the increased length, detail and technicality of decision letters and other FOI communications
• the overall profile of finalised FOI requests: that is, less requests resulting in documents being released in full
• feedback from experienced and regular users of the department’s FOI processes.

Consequences of this approach

The department’s compliance approach to FOI has benefits and disadvantages.

An evident benefit is improved compliance with statutory deadlines for FOI decision-making. The department’s response to the issues paper stated that it finalised 97% of FOI requests in 2014–15 to date inside statutory deadlines (including statutory extensions and suspensions of the processing clock), and 91% in 2013–14.

The department’s current approach also appears to involve greater consideration of the interests of third parties whose information is included in departmental documents.

A disadvantage of the department's approach, compared to its earlier approach focussing on the pro-disclosure objects of the FOI Act, is that less information is released resulting in applicants increasingly complaining and seeking review or making multiple requests. As noted above, the number of IC review applications made about decisions of the department almost doubled between 2011–12 and 2013–14.

The department’s efforts to ensure maximum compliance with the provisions of the FOI Act and its stated policy that its statutory obligations are the ‘paramount consideration in processing any FOI request’ appears at times to create additional work.

An example is a case study considered in the course of this investigation in which an applicant sought access to recordings of phone calls between him and the department. This request was practically refused. The department’s view was that due to the operation of the child support secrecy provision, it was required to redact from the phone recording any occasion on which the applicant gave the department information about a third party (his ex-partner). In calculating the time it would take to process the request, the department decided that four separate officers would each need to listen to the entirety of each recording for quality control purposes, to ensure that no information about third parties was inadvertently released.

This meant that listening to the 19 hours of recordings would take an estimated 76 staff-hours, which the department concluded amounted to a substantial and unreasonable diversion of its resources. Assuming this estimate reflects actual departmental practice, having four staff members listen to the entirety of each recording would appear to be a work intensive clearance process to minimise an inherently low risk (the accidental disclosure, to a customer, of a recording of words said by that customer). While the Commissioner acknowledges that the department is of the view that a secrecy provision prohibits disclosure of information about third parties even where that information is provided by the FOI applicant, the amount of effort the department expends to avoid a breach of this provision should be proportionate to the actual risk.

In two other case studies, applicants made requests for information that was not held by the department in the precise form requested:

• One applicant requested details of a call made by the department to a named organisation within a stated date range, which 'apparently infers that I was attempting to extort money'. The request was refused because there was no call that inferred extortion.
• An applicant requested access to an ‘actual conversation’ between him and the department. The request was refused because no recording of the phone call existed.

What the department did not advise the applicant in either case was that it held documents that were similar but not identical to those requested. In relation to the first request, a record of a phone call with the named organisation and within the stated date range was held, but no reference was made to ‘extortion’. In relation to the second request for an ‘actual conversation’, no recording or transcript of the phone call was held yet a written record of the call was.

As the department notes in its response, ‘[t]here is no obligation in the FOI Act or the Guidelines that creates an onus for the department to offer an applicant documents that are not in scope of their request and to which they do not specifically seek access’.[7] That may be technically correct from a legal standpoint, but does not reflect the customer service ethos that should also inform FOI administration. In both instances the department’s choice not to advise the applicants of the existence of other similar documents resulted in unnecessary review applications that were resolved by the department providing the documents that it held to the applicants.

Promoting a pro-disclosure culture

The Better Practice Guide states:

Agencies typically combine elements of all three approaches. Different emphases may be appropriate in different circumstances. From time to time, senior managers can reflect on the agency's approach to FOI and provide guidance to agency staff where appropriate.[8]

As that guidance indicates, no single approach to FOI processing will be appropriate for every agency and every circumstance.

The department’s response to the issues paper stated that ‘as an organisation, the department is committed to transforming and improving how we deliver services to our clients, including FOI services’. The department is the Commonwealth’s primary service delivery agency, responsible for providing access to social, health and other payments and services. The bulk of FOI requests to DHS are from people seeking access to their own personal or case file information.

The NWRN members consulted in the course of this investigation commented on the value of the department’s FOI service to their clients. NAAJA said that it sought information from the department for the following reasons:

• to obtain an understanding of why a decision has been made so that we can advise our clients about their rights and obligations;
• to advise our clients on the merit of an appeal;
• to identify whether the law or policy has been appropriately followed in a particular matter. …

Centrelink documentation is often the only record of time frames and key events relevant to the decision that a client is seeking advice about. Overcrowding, mail insecurity, low literacy rates and cultural factors mean that clients are often unable to retain written records of their interactions with DHS. [9]

NAAJA also provided two case studies of how it had used the FOI Act to assist its clients.

Case study

NAAJA sought information regarding DHS's refusal to grant a woman caring for her elderly mother a carer payment for a three month period. NAAJA obtained documents under FOI (before the change in FOI process) and was able to advise the woman that she was entitled to claim carer payment for the 3 month period prior to making her claim.

Case study

A woman from a remote community sought NAAJA's assistance to be paid Parenting Payment. NAAJA assisted her to get on a payment and advised her that we could obtain documents regarding the cancellation of her parenting payment and then advise her on the merits of requesting a review of the decision. The documents were released under FOI (before the change in the FOI process) and revealed that:

• DHS was on notice of the breakdown of the relationship and should not have insisted that she provide her partner's payslips after their effective separation;
• DHS had not notified her of its decision to cancel her payment;
• she had contacted Centrelink a number of times during the 13 weeks following the cancellation of her payment.

NAAJA made detailed submissions to the Authorised Review Officer who overturned the decision to cancel her payment and she was paid $5000 in arrears.[10]

WRAS said that FOI releases are essential for it to properly advise its clients:

Welfare Rights centres (including our centre) provide free legal advice and assistance to clients about many aspects of social security law. In order to do this it is frequently necessary to obtain copies of the relevant parts of a client's file from DHS. Without these documents the clients cannot obtain proper legal advice.[11]

WRC said that FOI provides the only independent check on the material that the department lodges with tribunals that are reviewing its decisions:

In the SSAT and AAT, DHS is under a statutory obligation to provide relevant documents. However, its officers decided what documents to provide. In our experience, there are often serious deficiencies in the documents provided to the person through the tribunal process. These deficiencies are more likely to go undetected and unremedied in the case of self-represented litigants, the vast majority of appellants. For example, in one case our client appealed a debt on the ground of error, saying that he had provided payslips and told Centrelink he was working. We obtained documents under FOI which included a record of the conversation with Centrelink and the payslips. These documents were not on the papers. Once we provided them to the SSAT, the whole debt was waived due to Centrelink error.

The only independent check on documents provided to these tribunals is via the FOI Act. The proper administration of the FOI Act by DHS is therefore critical to the effective and fair operation of the system of review of its decisions.[12]

The Commonwealth Ombudsman made a similar observation:

Reviews of member of a couple decisions and debts are usually conducted through administrative appeals mechanisms such as the Social Security Appeals Tribunal and Administrative Appeals Tribunal (AAT). While s 37 of the AAT Act 1975 requires an agency to provide all documents relevant to the decision under review, in practice the documents are compiled from those on which the agency based its decision that a person is a member of a couple and does owe a debt and may not include documents that support an alternate view of the facts, but which were overlooked or misinterpreted in the making of a decision. The existence of such critical documents can only be ascertained with certainty by way of an FOI request …[13]

Those comments illustrate the value of FOI to the department and its customers.

The Information Commissioner’s view is that a pro-disclosure culture is both necessary and valuable for all agencies that are subject to the FOI Act. A pro-disclosure approach is required by the objects of the FOI Act, the information release provisions of the Privacy Act, and the Commissioner’s Guidelines made under s 93A of the FOI Act.

A pro-disclosure approach is particularly important for the Department of Human Services, given that the majority of requests it receives are from applicants seeking access to their own personal information.

A central purpose of FOI legislation is to facilitate prompt and inexpensive public access to government held information. The Commissioner is concerned that a legal and technical approach to FOI can be counterproductive by inhibiting the release of non-sensitive information, creating or extending disputes with clients, and increasing the cost of FOI administration.

The department's focus on technical and legal compliance appears to be a significant cause of the rising review rate the department has experienced over the last three years. While a compliance focus may make decisions more defensible on review, combining it with an outcome-based focus is likely to reduce review rates.

The Commissioner acknowledges that the department has achieved benefits from improving technical and legal capabilities within its FOI unit. However, the Commissioner believes the department could benefit from promoting a stronger pro-disclosure culture, in line with the following recommendations.

Accessibility of FOI and information access

Approximately 97% of FOI requests received by the department in 2013–14 were for access to an applicant’s own personal information. The department holds a significant amount of personal information about most members of the Australian community, including many of the community’s most vulnerable. The efficient and effective operation of FOI and information access arrangements is an important responsibility of the department in its role as the Commonwealth’s primary service delivery agency.

The issues paper expressed the Commissioner’s preliminary view that the department’s FOI service was not accessible for some vulnerable clients. The department’s response demonstrated that it does take steps to assist clients with specific needs. Nevertheless, the Commissioner has lingering concerns about the ease of use of the department’s FOI service generally, and makes recommendations for improvement.

Accessibility for vulnerable clients

FOI applicants to the department may face barriers associated with disadvantage—such as limited education, disability, or restricted social and economic resources. This can impact on the ability of those applicants to utilise the FOI Act. The department, as a client-focussed agency, can be expected to adjust its processes and communications to remove barriers to accessibility of information.

The OAIC frequently receives applications for review and complaints from vulnerable clients who are frustrated by the complexity and inaccessibility of FOI processes at the department, and at other agencies covered by the FOI Act. In the Commissioner’s experience, these matters can often be resolved by an OAIC officer explaining the reasons behind an unclear decision letter or complex statutory procedure to the applicant, typically over the phone.

In the issues paper, the OAIC identified a number of possible barriers to FOI accessibility for vulnerable client groups of the department, and drew its attention to some cases of concern. The department made the following comment in response:

Supporting vulnerable people is central to the department’s business. Our staff, including our FOI staff, are very experienced at supporting vulnerable people in their interactions with the department. We undertake research and analysis activities to further develop our core role in the community as well as our role in supporting vulnerable and disadvantaged customers.

The FOI Team seeks to assist applicants by liaising with them via telephone where a request is unclear or voluminous. Team members seek to call applicants within 24 hours of the request being allocated to them and will discuss with the applicant what they are trying to achieve in order to narrow down the documents that will assist the applicant.

If there are language or literacy barriers, team members will often draft a suggested scope that could be processed by the department and email the suggested scope to the applicant and seek agreement by return email. This process is undertaken informally and not as part of the practical refusal process.[14]

The department also drew the OAIC’s attention to numerous instances in which it had adjusted its processes to assist vulnerable clients. It also provided context for each of the individual case studies identified in the issues paper.

While concerned about a small number of incidents in which applicants with specific needs were ‘caught out’ by the department’s processes, the Commissioner accepts the department’s comment that ‘policies and processes are not infallible’.[15] In most cases the OAIC analysed in which a particular FOI applicant may have needed special assistance, it appears the department was aware and adjusted its processes. There were several FOI cases too in which departmental staff went beyond the bare requirements of the FOI Act to assist vulnerable clients.

A remaining shortcoming nevertheless is that the department’s Procedures Manual, which emphasises formal legal compliance, does not reflect as clearly the values articulated in the department’s response to the OAIC.

Ease of use of FOI service generally

Although the department has demonstrated that it makes appropriate adjustments on a case by case basis to assist vulnerable clients, the Commissioner has continuing concerns about the general accessibility and ease of use of the department’s FOI service.

The OAIC has received complaints from applicants (including experienced FOI applicants and solicitors) about difficulties they have had making FOI requests to the department, particularly when the practical refusal mechanisms in the FOI Act are involved. This was commented on by NWRN members consulted during this investigation. NAAJA stated that even its experienced solicitors had trouble navigating the department’s FOI procedures:

Our concerns with FOI processes go beyond accessibility for vulnerable clients. We consider the current approach limits the accessibility of FOI services to the general public, which is obviously exacerbated when vulnerable people are involved. NAAJA solicitors have found the new processes frustrating, time consuming and overly complex.[16]

The WRAS submission (quoted earlier in this report) also commented that decision letters from the department had become more complex and lengthy since April 2013, and that some letters were difficult to understand and contained ‘cut and pasted’ chunks of text.[17] WRAS also raised concerns that some requests were literally construed by departmental officers, which resulted in clarifying correspondence that delayed information access:

I have noticed an increased requirement imposed by some FOI decision makers for us to correctly identify the types of documents sought using DHS terminology. ... Example: I made a request which included 'any computer document between x date and y date'. It was refused as it did not 'satisfy the requirements in paragraph 15(5)(b) of the FOI Act'. Our agency had previously used this shorthand for many years in our FOI requests to refer to ODR documents and this had never before caused an FOI officer any concern. In this case I was able to specify that I wanted the 'ODR documents' but a client would not be able to.[18]

Length and complexity in FOI communication

A common complaint to the OAIC is that communication from the department regarding FOI can be difficult to understand.

In the issues paper, the Commissioner observed two changes in FOI decision letters from the department over the last few years: decision letters have increased in length, and are also more likely to cite judicial and administrative precedent, even when addressed to an FOI applicant who is not a lawyer or experienced in FOI. An audit of decision letters in IC review applications received in 2013 and 2014 found that the average length of departmental FOI decision letters (excluding review rights, document schedules and other attachments) had increased from 3 to 5 pages.

NAAJA remarked:

… often our clients need assistance to understand DHS decisions because of the unintelligibility of DHS letters. ... letters about FOI are more legalistic than those about income management.[19]

While it can benefit an applicant to receive a longer and specialist response, the downside can be confusion, particularly if the recipient is a self-represented applicant with limited knowledge of the law.

In response to this concern, the department said:

Our decision letters address the requirements of s 26(1) of the FOI Act. The department does not consider that the length of decision is necessarily an indicator of the quality or comprehensibility of a decision. In this regard, the department considers that the quality of our decision letters has improved by providing better reasons. In the past, the brevity of our decision letters may have been an indicator that less comprehensive reasons were provided.

The department does regularly contact FOI applicants by telephone to explain the reasons for decisions. While OAIC has been able to resolve some complaints and reviews by explaining the reasons for a decision to an applicant, this does not mean that the department has failed in its task. In many cases, having a decision explained by a person who the FOI applicant believes is independent from the department satisfies the FOI applicant. The department considers that one of the great benefits of OAIC is the fact that your office gives applicants an independent agency to talk to before the applicant decides whether to pursue appeal rights.

However, the department as a whole is committed to striving for continuous improvement in the way we deliver services. In this regard, we believe there is always room for improvement in the way we communicate with our FOI clients. We will continue to analyse random samples of FOI matters to look at the way we communicated with our clients and develop practical improvements to our processes (including template letters).[20]

The Commissioner acknowledges that lengthy decision letters will sometimes be required because of the requirements of s 26 of the FOI Act,[21] but is of the view that there is scope to simplify departmental FOI communications. Other agencies appear able to communicate more concisely and directly than the department. The NWRN members consulted as part of this investigation indicated that in the past FOI communications from the department were easier to understand.

The OAIC has noted improvements on this front in the department since mid-2014, observing reductions in the length and complexity of decision letters that have come to the OAIC for review. It appears the department is working to improve the readability of its letters.

The Commissioner also notes with approval that the department has modified its procedures in recent months to ensure earlier and more frequent telephone contact with applicants. Many applicants find telephone communication more effective than detailed written correspondence. WRAS commented that this change is a positive development:

On a positive note I have noticed that in recent months FOI decision makers are prepared to phone me to discuss concerns they have about requests and to genuinely consult about the documents we require and whether it is appropriate to split a request or the order in which they can provide them. If they need more time they will let me know and I agree to the further time. This is a welcome change from the practice that commenced in about May 2013 where we would receive an unduly formal legal letter which was stated to be a 'consultation letter' and was then followed by the decision letter refusing access.[22]

The Commissioner encourages the department to continue to review the way it communicates with clients, to use phone contact when appropriate, and to apply plain-English drafting principles in written correspondence. The department is encouraged to seek customer feedback when developing letter templates.

FOI web page and request forms

The department’s FOI web page provides basic information about how to make an FOI request, and restates the requirements of s 15 of the FOI Act. The web page provides postal and email addresses for lodging requests.

The OAIC was unable to locate on the department’s web page a copy of the FOI request form that was provided to the OAIC in the department’s response to the issues paper. This form should be easily available on the website, as the form is well designed and comprehensive.

The Commissioner’s view is that there is scope to simplify the department’s web page. While this is to some degree a subjective assessment, the web page is difficult to understand compared to other departmental FOI web pages, and the content could be reviewed generally, drawing on best practice in other Australian Government agencies and in other areas of the department.

Assistance to applicants prior to the FOI process

As noted by WRAS, the department sometimes expects applicants to precisely frame the terms of a request in accordance with departmental terminology. This places applicants in a difficult position if they do not know the categories of documents the department holds, or how those documents are referred to by the department.

There is limited guidance on the department’s FOI web page about how to frame a successful request, or about the information the department holds. This is exacerbated by the lack of a telephone contact number for prospective applicants. Both the Department of Veterans’ Affairs and the Department of Immigration and Border Protection[23] provide a contact number for prospective applicants to call if they need assistance when making a request.

The department’s heavy use of s 24AB suggests that it often receives requests that it has difficulty processing due to the volume of information that it holds, or because of a lack of clarity provided by the FOI applicant about the information that is sought. This could be addressed by providing guidance for applicants to consider before a request is made.

One issue that commonly arises relates to requests for ‘whole files’. These requests are often practically refused. The difficulty the department has in processing such requests is unsurprising, due to the wide range of government programs that it administers and the numerous information systems it maintains. This problem could be addressed by publishing guidance material on the department’s website about the categories of information that the department holds relating to individuals. This guidance material could also direct applicants to administrative access arrangements that are available for particular categories of document.

There is currently information about some categories of information that can be accessed administratively on the department’s web page; for example, there is guidance on the FOI web page about how to request Medicare and Pharmaceutical Benefits Scheme (PBS) claims information. A more comprehensive approach could be adopted by the department, by reviewing historical requests to identify the most frequently released categories of information. Based on this review, the department could prepare guidance for applicants about how to frame a successful request.

The department provided the OAIC with a draft form it has created to assist applicants to clarify the scope of their requests for whole files. The Commissioner suggests that once this form is finalised, it be given to prospective applicants as well as those whose requests become subject to a practical refusal reason, to improve the quality of initial requests.

Administrative access for straightforward requests

As noted in the background section above, one reason for this own motion investigation was a decrease in the proportion of FOI requests that resulted in a decision providing access to information.

The department indicated that the primary cause for this reduction was an effort to divert FOI requests to administrative access. The department said:

As the OAIC has identified in the paper, the department receives a large number of requests from applicants requesting their own personal information. Many of the requests are for information which is not sensitive and which can be released outside of FOI (for example, requests for letters which were sent to the FOI applicant but have been misplaced). Sometimes, the department has self-service options (such as online services) which allow individuals to access the information that they seek.

For every request the department's FOI officers consider whether the request is for non-sensitive information which could be released outside the FOI Act process. … The FOI officer will often liaise with the relevant single point of contact for the relevant area to discuss the request and whether access could be given administratively.

Although the emphasis on giving access to documents has been termed the 'withdrawal project', the desired outcome is a successful information release rather than withdrawal of the FOI request per se. The withdrawal of the FOI request necessarily follows a successful information release because the department takes the view that, unless a request is withdrawn, the obligation to make a decision in accordance with s 15(5) of the FOI Act remains.

An analysis of the data for the 2013–14 financial year indicates that 1,176 FOI applications were coded as ‘withdrawn’. Of those, 402 were attributable to withdrawal following the request consultation process under s 24AB of the FOI Act. 651 cases (or approximately 55% of all withdrawals) were withdrawn on the basis that information was released informally through administrative access arrangements. It is also possible that some of the remaining 123 cases were withdrawn due to access being provided by an alternative means (because it is rare for the department to receive an unsolicited withdrawal of a request and very few withdrawals are made on the basis of charges under s 29(2) of the FOI Act). However the department’s coding for these requests was not fully implemented when this process commenced therefore we cannot assess the 123 matters without reviewing each matter individually.

The department’s approach of striving to implement comprehensive administrative access arrangements is reflective of your submission to the Hawke Review wherein discussing the challenges of open government you noted ‘in our view, embedding a strong administrative access framework to complement formal FOI access rights is part of the solution’.[24]

The department correctly notes that the OAIC has promoted the adoption by agencies of administrative access arrangements that can operate alongside the formal FOI process.[25] The underlying message is that administrative access is an essential channel that can provide quicker, flexible and inexpensive information release.

That principle should be uppermost. If an applicant has made an FOI request that is straightforward and can be processed quickly, the better option may be for an agency to follow that path. It may be no more cumbersome to release information under the FOI Act than by an administrative release. In particular, if access is given to a requested document in full, there is no need for a formal statement of reasons under s 26 of the FOI Act and the request can be finalised by providing access to the requested document.

The Commissioner suggests that the department review its processes so that it can respond to information access requests – administratively or under the FOI Act – in the most efficient manner possible. In particular, an applicant who has made a straightforward access request should not be referred to another area of the department to make an administrative request and to withdraw their FOI request if that is unproductive and will impede efficient access.

Administrative access for complex requests

The NWRN member organisations consulted in the course of this investigation commented on their experience utilising administrative access at the department. Their comments were about access requests for lengthy investigation files and may not therefore be representative of typical information access requests to the department.

WRAS described its experience utilising the department’s administrative access process in tandem with FOI:

Recently and following discussions with DHS, we have been told to obtain the documents we can administratively thereby 'reducing the scope of our FOI requests'. ... DHS have advised me to request documents outside the FOI process ... and then the balance from FOI.

From my perspective this has resulted in more work for me and presumably DHS.

I have to send two requests and try to make sure each section within DHS knows what I have requested form the other. Even so, I am almost always provided with duplicates of many of the requested documents (which is inefficient and wasteful). In relation to the documents provided outside FOI there is often no way of knowing whether everything I have requested has been provided to me or whether anything has been overlooked or excluded in this 'administrative process'.[26]

The WRC reported a similar experience:

Quite properly, and in accordance with OAIC guidelines, it appears that DHS has been implementing an administrative access policy which often leads to the release of some of the documents we request. Broadly, the policy is to direct us to obtain certain documents directly from the department’s serious non-compliance area.

But on the whole, the process is wasteful and inefficient. There is excessive formality – we are required to engage in correspondence formally altering our FOI request to exclude what is to be released outside FOI/administratively.

Second, there does not seem to be clear guidance ... as to what they can, and cannot, release to us administratively or they understandably are not familiar with how to locate the documents we request. There is also a general reluctance on the part of many officers, who do not see responding to our request as part of their role and as taking time away from it.

The end result is frequent back and forth between our caseworkers, the FOI officer and the serious non-compliance officer, resulting in inefficiency and delay. In one case, we have just received [in October 2014] a very common document created by Centrelink when raising a debt, after lodging an FOI request on 29 July 2014. In the meantime, there have been multiple emails and phone calls from myself and the caseworker responsible for the case. This delay of months has occurred in the context where our client has been referred for possible charge and prosecution.

NAAJA raised a number of concerns with administrative access as opposed to FOI release:

Our concerns with information provided administratively are:

• there is no central point to request documents;
• there is no time frame for the provision of documents;
• there is no way to compel DHS to provide the documents requested;
• documents are not always provided as requested; and
• the documents that can be provided under administrative access often do not provide detail around the reasons for a Centrelink decision, for example online documents.[27]

In evaluating those observations, it is important to bear in mind that the development by agencies of administrative access procedures that operate alongside but in an FOI context is a relatively recent trend. Practice is evolving. The concerns expressed by NWRN members point to matters that can be considered by agencies, particularly in applying administrative access to complex information requests.

This is emphasised in the OAIC agency resource factsheet No 14, Access to government information – administrative access.[28] The factsheet explains that administrative access can often be provided on an informal, flexible and unstructured basis. In other circumstances it may be better to establish a more structured administrative arrangement that is tailored to the information requests received by an agency and that is explained on its website. Matters that can be addressed in the arrangements include those raised by NWRN members about processing timeframes, the types of information or documents that can be requested, interaction with FOI Act processes, recording requests, collecting statistics, and review or accountability of access request decisions.

The central objective, in whatever arrangements are adopted, is to deal with information access requests in the most efficient and prompt manner possible.

The OAIC factsheet also emphasises the need to align FOI and administrative access procedures with those applying to personal information access requests that fall under Australian Privacy Principle 12 (APP 12), which deals with ‘Access to personal information’. This is particularly important for the department, given that 97% of its FOI requests are for personal information.

OAIC guidance on APP 12 explains that an individual has the right to request personal information by that route, and this may indeed be a simpler or more attractive option for individuals to use.[29]

APP 12 requires that personal information be given to an individual ‘on request’. This may be either an oral or written request. APP 12 stipulates minimum access requirements that match those in the FOI Act:

• an agency must respond to a request for access within 30 calendar days
• access must generally be given in the manner requested by an individual
• no charge can be imposed for providing access
• access can only be refused on the same grounds set out in the FOI Act, and
• a written statement of reasons must be provided if access is either not given or not given in the manner requested.

Some of the procedural features of the FOI Act that enable agencies to regulate the processing burden of FOI requests are either not contained in the Privacy Act or not expressly stated. For example, there is no mechanism to extend the statutory timeframe for processing a request; and there is no request consultation process for requests that may be refused on practical refusal grounds.

An individual may complain to the OAIC about an agency’s failure to comply with APP 12 requirements. The OAIC can investigate the complaint and exercise any of the remedy powers contained in the Privacy Act. Though it would likely be an exceptional case, those powers include the Commissioner’s power to make a determination that a complainant be paid compensation for any loss or damage arising from an APP breach (Privacy Act s 52(1)(b)(iii)).

In summary, it is important that information access procedures and practices in agencies align with both the FOI Act and the Privacy Act. Agencies should minimise the risk of complexity or confusion that may be caused by administering overlapping but different statutory and administrative access mechanisms.

To address the concerns of NWRN members about the department’s administrative access arrangements, the department should document its administrative access procedures and make information about those procedures available on its website. The Commissioner acknowledges that the department has provided guidance to NWRN members about the administrative access process. However, there is an apparent need for this guidance to be formalised and made publicly available.

The Commissioner further suggests that the department endeavour, wherever possible, to adopt a ‘one request one response’ approach to information release to reduce the burden of its FOI processes on applicants.

Use of practical refusal mechanism

The practical refusal mechanism in the FOI Act is an important tool to assist agencies to manage unreasonably large or poorly framed FOI requests. This is a foreseeable occurrence, as applicants may not know what documents an agency holds or how information is recorded.

A request can be refused if a ‘practical refusal reason’ exists. Such a reason exists if processing a request would impose a ‘substantial and unreasonable’ processing burden on an agency, or a request fails to include ‘such information concerning the [requested] document as is reasonably necessary to enable a responsible officer … to identify it’.[30]

An agency relying on this ground of refusal must first follow a ‘request consultation process’ under s 24AB of the FOI Act. This includes an obligation to assist an FOI applicant to revise their request so that the practical refusal reason no longer exists.

Increased use of the practical refusal mechanism

The department commenced a request consultation process in 17% of all finalised FOI requests in 2013–14. This is a high figure compared to the average of all agencies, in which 6% of requests were subject to a practical refusal process in the same period. It is a particularly high figure compared to other agencies that receive FOI requests primarily for access to customer information. By way of comparison, the Department of Veterans’ Affairs used a request consultation process in less than 1% of requests and the Department of Immigration and Border Protection in 3% of requests.

The department’s increased reliance on the practical refusal mechanism in the FOI Act is both a reflection of, and a significant contributor to, a broader trend across the Australian Government. In 2011–12, only 314 practical refusal notices were issued by all Commonwealth agencies. That figure rose to 782 in 2012–13, and to 1828 in 2013–14. The department issued 777 of the notices sent in 2013–14, which is more than twice the number sent by all Australian Government agencies in 2011–12.

Table 3 below sets out the use of s 24AB processes by the department over the last three reporting years, and the outcome of those processes. Of the 777 request consultation processes finalised by the department in 2013–14, only 292 (38%) resulted in a revised request scope that was able to be processed.

The rising proportion of the department's FOI decisions that are subject to a request consultation process should be carefully monitored by the department and compared to similar agencies.

It is beyond the scope of this investigation to consider whether particular practical refusal decisions of the department are correct or incorrect in individual matters. This is something that is properly considered via review processes. Of the two applications for IC review of practical refusal decisions of the department that have proceeded to decision, one affirmed the department’s practical refusal decision (‘DC’ and Department of Human Services [2014] AICmr 106) and one set aside the practical refusal decision ('AP' and Department of Human Services [2013] AICmr 78). Both decisions found that the department’s estimate of its processing time was too high. The department has adjusted its procedures for estimating the processing burden of individual requests in response to those decisions and the Commissioner expects the department will continue to refine its estimation processes as more of its decisions are reviewed.

Purpose of the request consultation process

As noted above, 38% of request consultation processes conducted by the department resulted in a revised request scope that was able to be processed. It appears that this figure is low because of a lack of internal guidance about the purpose of a request consultation process, and about how to assist an applicant to make a revised request.

In the Commissioner’s view, a successful request consultation process should aim at reaching agreement on a modified request with a revised or clarified scope that an agency can process. A practical refusal decision is nevertheless a foreseeable outcome, for one of a number of reasons that could include: an applicant withdrawing or deciding not to pursue the request; the applicant not responding within 14 days to the request consultation notice (perhaps because the applicant does not understand the process or the need for a formal written response); or the applicant not modifying or clarifying the request in a way that removes the practical refusal reason to the satisfaction of the agency.

The department said that it considers the purpose of ss 24 and 24AB to be to strike the balance between an individual’s right to information and the imposition that their FOI request may impose on an agency’s resources:

We note that the premise of the paper is that a successful request consultation process will result in a modified request such that there is no longer a practical refusal reason (and, conversely, an unsuccessful process is one where the outcome is a practical refusal decision or the application is withdrawn). The department does not consider that this characterisation is helpful. In the department’s view, ss 24 and 24AB are intended to strike a balance between the imposition of a request on an agency’s resources and an individual’s right of access to information. In the department’s experience, some FOI applicants are unwilling to engage constructively in the request consultation process. In those circumstances, if a practical refusal decision is made under s 24, the department does not consider the process to have been a failure.

The Commissioner does not disagree with that analysis, and agrees that an individual may not participate constructively in a request consultation process. However, agency assistance to the applicant may be necessary for this to occur. An applicant typically does not know:

• what documents or how many documents an agency holds
• how long it will take to provide access to those documents and
• how many hours of processing time the agency regards to be a ‘reasonable’ diversion of resources in the context of the particular request.

Due to the information imbalance between an agency and an FOI applicant, the agency needs to take the lead in any request consultation process if it is to result in a revised scope. It is therefore important that an agency officer conducting a consultation process should aim to assist the applicant to frame a request that can be processed.

Currently, the chapter of the department’s FOI Processing Guide that relates to s 24AB does not provide any encouragement or guidance to officers to assist an applicant to make a revised request. Often, the department’s practical refusal notices make general suggestions, such as restricting the request to a 'narrower date range' or to 'specific categories of documents'. More practical advice could be provided, for example, by including a specific suggested scope that the department could process (if the FOI officer has some idea of what the applicant is trying to find out), or by listing the documents or categories of documents within the scope of the request so that an applicant could choose what they want access to.

The processing guide does not suggest telephone contact as a means to obtain a revised scope, or provide suggestions about how an FOI officer can assist an applicant to successfully revise the scope of a request.

The Commissioner makes a number of recommendations to improve the department's request consultation processes.

Applying the practical refusal mechanism flexibly

Many of the department’s early decisions expressed a set policy of not processing matters that would take longer than an estimated 40 hours.

The NWRN members consulted by the OAIC in the course of this investigation stated that from mid-2013, the department had told them that it would be unable to satisfy any FOI request that would take longer than 40 hours to process. The WRC said:

I do not see that DHS can apply a uniform 40 hour limit in cases so that, on the one hand, it can raise a substantial debt and possibly refer a person for prosecution, but on the other hand tell a person seeking to look at the basis for the decision that their request is too large.[31]

In a report on the Review of charges under the Freedom of Information Act 1982 in 2012,[32] the Information Commissioner recommended the imposition of a 40 hour processing limit, as part of a broader set of changes to the FOI regime. This recommendation has not been implemented by Government. The Guidelines issued by the Commissioner under s 93A note: ‘Whether a practical refusal reason exists will be a question of fact in the individual case. Bearing in mind the range of matters that must and can be considered, it is not possible to specify an indicative number of hours of processing time that would constitute a practical refusal reason’. [33]

In its response to the issues paper, the department said:

The department does not apply a 40 hour processing cap as a blanket rule. Much depends on the circumstances of the case (for example, the volume and complexity of the documents involved). However, the department does regard 40 hours of processing time to be a substantial amount of processing, amounting to over one week of full-time work for one staff member...

The Commissioner has observed that recent decisions of the department do not refer explicitly to 40 hours, but that still appears to act in practice as a 'soft cap' for the department when considering if a practical refusal reason exists.

The Commonwealth Ombudsman's Office submission to this investigation suggested the department adopt a more flexible approach:

… in our view, a more flexible approach should be taken to deciding whether any diversion of resources is ‘unreasonable’ in circumstances where the agency has made a decision with significant impact on a customer and has itself devoted resources to the collection of a large volume of material about that person. It would seem that the actual number of larger requests in proportion to the overall number of requests received by the agency ought to also be considered in deciding whether or not there is in fact an unreasonable diversion of resources. Given the nature of the work of DHS, it may be that a small number of large requests is to be expected and planned for.[34]

Similarly, WRAS said:

It is DHS who decide how large a file will be by deciding how far back an investigation will go or how much information they will gather and then it is DHS who have decided that if (in their opinion) it will take them more than 40 hours to process a request for access to documents they will refuse to do so.[35]

It is an undesirable outcome if individuals cannot obtain access to documents on a departmental file recording a departmental investigation into the individual’s affairs, simply because the department has itself gathered a large volume of material about the individual.

The Commissioner is of the view that the department should consider individual circumstances when applying the test in s 24AA of the FOI Act. Section 24AA(3) states that an agency cannot have regard to the reason why the applicant has made the request. However, an agency is to consider whether processing a request would ‘unreasonably divert’ its resources from other operations (s 24AA(1)(a)), which allows consideration of circumstances in addition to the estimated processing time. For example, it may be relevant to consider that the documents requested relate to prosecution or significant debt enforcement action against the applicant, or that there is a complex volume of documents that cannot meaningfully be disaggregated into smaller parcels.

The Commissioner agrees with the Commonwealth Ombudsman that the department should plan for a small number of very large FOI requests, rather than anticipating that all requests be of a certain size. If the department gathers a large amount of information about clients, a consequence may be that it will need to expend additional resources to provide that information to clients upon request, or find ways to process requests more efficiently.

In that context the department should examine options for improved and speedier FOI processing. A significant proportion of processing time estimates in practical refusal decisions relate to third party consultation. The need for third party consultation could be minimised by allowing third parties an opportunity to raise concerns about the disclosure of material at the time of collection. In ‘CX’ and Department of Human Services [2014] AICmr 102, the Acting Freedom of Information Commissioner considered documents that were contained on a Centrelink investigation file containing responses to inquiries directed at former employers of the applicant. Each of the inquiry letters sent to the former employers included a notice that the document might be disclosed under FOI, and asked the former employers to advise if they had concerns about the disclosure of the information. Including such notices when collecting third party information would remove the need to conduct consultations once an FOI request is received.

Liaison with WRAS

The Commissioner acknowledges that the department has been assisting members of the NWRN work within its revised processes. The department provided the following background behind its changed approach to requests for investigation files:

Underlying this issue is an apparent concern about access to investigation files by Centrelink clients (or those advising Centrelink clients). In this regard, we note that of the six external stakeholders consulted by OAIC in the preparation of the paper, five are members of the National Welfare Rights Network (NWRN). The major concern of these stakeholders is a change in approach to access to investigation files held by Centrelink.

In the past, investigation files were, on occasion, provided to the individuals concerned or their lawyers without a proper consideration of the consequences of release or any applicable exemptions. The department no longer considers that approach to be acceptable. Aside from the possibility that disclosure of investigation files could prejudice the effectiveness of an investigation, investigation files often contain information about the identity of confidential sources or contact details of other individuals. There is a very real risk that inappropriate release of material on an investigation file could endanger the safety and privacy of other people.

For this reason, the department has deliberately adopted a much more rigorous approach to considering release of investigation files under the FOI Act. While we have been working with the NWRN in relation to the department's approach to investigation files (including by having regular liaison meetings during which this issue has been discussed), we are committed to continuing to find better ways of explaining the approach and assisting NWRN members to make requests which do not involve a practical refusal reason.

The department respectfully disagrees with the stakeholder comments that access to an investigation file through FOI is necessary to successfully challenge a decision in relation to a debt or defend a prosecution. Appeals and review mechanisms already provide avenues for release of relevant documents to the individual concerned (for example, s 37 of the Administrative Appeals Tribunal Act 1975 (Cth)). The department is not aware of any other merits review jurisdiction where an FOI request is routinely used in tandem with other mechanisms for the provision of relevant documents.[36]

The department has held meetings with NWRN to explain its processes and changed approach, and to help NWRN members utilise administrative access mechanisms. The department explained the assistance it had provided:

We have provided NWRN the attached documents. As reflected in that guidance material we suggest that the NWRN contact the Serious Non-Compliance area of the department in the first instance. That area is in the best position to release documents administratively. It also provides an avenue for communication if an individual is concerned about documents or missing evidence in an administrative decision concerning a debt.

Although we have conducted face-to-face meetings with the NWRN and provided them written guidance material, we accept that there is more that we could do to inform NWRN about our approach to handling requests for files. In particular, we will continue to assist them to develop practical guidance for members of NWRN about how to make requests which do not involve a practical refusal reason.

This has allowed applicants to make successful requests for investigation information to the department (albeit by greatly reducing the size of requests). NAAHA said:

Recent requests for information have largely been granted – we are reducing the size of our FOI requests radically and access is being granted to a limited number of documents, however this undermines our ability to do our job properly and thoroughly assess our client's administrative review rights.[37]

WRC similarly said that it has reduced the size of its requests to avoid practical refusal decisions:

There have been discussions between DHS and this Centre about FOI practice and administration. Overall, I would say that although we welcome DHS's willingness to engage with us on this issue, this has not resulted in any real change in approach from our perspective. From our side, we have engaged in our own review of the drafting of our requests and this has resulted in significantly more focussed requests in many cases. However, narrower requests are not possible in all cases ...[38]

The Commissioner considers that the department's efforts to assist NWRN make requests within the department’s changed practical refusal framework have been valuable, and encourages the department to continue to work with NWRN on this issue.

Appendix A – Department response

Kathryn Campbell CSC
Secretary

Ref: EBI4/1035

Professor John McMillan AO
Australian Information Commissioner
Office of the Australian Information Commissioner
GPO Box 2999
CANBERRA ACT 2601

Dear Professor McMillan

Thank you for your email of 2 December 2014, providing the department with an opportunity to respond to your draft report titled FOI at the Department of Human Services: Report of an own motion investigation.

The department has a whole-of-organisation approach to FOI and is committed to continually improving service delivery in all areas of our business, including in providing access to information. The department is focused on improving the customer experience, particularly for our vulnerable and special needs customers.

In this context, we were pleased to have the opportunity to work with your office and receive independent feedback about our policies and processes. The department is proud of its track record in information release—in the last financial year, the department processed 4,500 freedom of information requests and administratively processed 132,663 requests for personal information from our customers.

Your report highlights that agencies can always seek to improve their service delivery. The department consistently strives for innovation in the delivery of services to the Australian community. The department notes the recommendations in your report and will, over the coming months, develop a plan for implementing them.

I acknowledge the constructive approach taken by you and your office during the own motion investigation, and thank you for giving the department the opportunity to comment on the draft report.

Yours sincerely

Kathryn Campbell
10 December 2014

Appendix B – Acronyms and abbreviations

APP – Australian Privacy Principle

Department – the Department of Human Services

DIAC – the Department of Immigration and Citizenship

DVA – the Department of Veterans’ Affairs

Commissioner – the Australian Information Commissioner

FOI – freedom of information

FOI Act – Freedom of Information Act 1982 (Cth)

NAAJA – North Australian Aboriginal Justice Agency

NWRN – National Welfare Rights Network

OAIC – Office of the Australian Information Commissioner

Privacy Act – Privacy Act 1988 (Cth)

WRAS – Welfare Rights and Advocacy Service

WRC – NSW Welfare Rights Centre