Go to top of page

Freedom of information (FOI)

FOI provides a legally enforceable right of access to government documents. It applies to Australian Government ministers and most agencies, although the obligations of agencies and ministers are different.

Individuals have rights under the FOI Act to request access to government documents. The FOI Act also requires government agencies to publish specified categories of information. It also encourages them to release other information proactively.

FOI enquiries

The OAIC handles enquiries from the public on FOI issues, including the IC review function.

During this reporting period, we experienced a 49.2% increase in FOI enquiries from 2017–18. Our Enquiries Line answered 2,051 telephone calls about FOI and responded to 824 written enquiries about FOI. We also helped with six in-person enquiries about FOI. Most enquiries were about the OAIC’s jurisdiction (47%) and general processes for FOI applicants (39%), including how to make an FOI request or complaint, or seek review of an FOI decision. See Table 2.6.

Table 2.6: FOI enquiries by issue

Issue

Number*

OAIC’s jurisdiction

1,343

General processes

1,130

Processing by agency

263

Agency statistics

236

Access to personal information

34

Access to general information

20

Vexatious application

10

Amendment and annotation

5

Information Publication Scheme

4

* There may be more than one issue handled in an enquiry.

IC reviews

An IC review is a review of decision made by an Australian Government agency or minister subject to the FOI Act, including a decision:

  • refusing to grant access to a document wholly or in part
  • where a requested a document does not exist or cannot be found
  • granting access to a document where a third party has a right to object (for example, if a document contains their personal information)
  • to impose charges for access to a document, including a decision to refuse to waive or reduce charges, or
  • refusing to amend or annotate a record of personal information.

During this reporting period we experienced another significant increase in IC review applications, receiving 928 applications — a 15.9% increase over 2017–18. The overall increase in IC review applications since 2015–16, when we received 510, was 82%.

Despite this continuing significant increase in IC review applications, we finalised 659 IC reviews in 2018–19 (an 8% increase over 2017–18, when we finalised 610 IC reviews). We finalised 73.1% within 12 months. The increase in IC review applications and our focus on reducing the number of cases over 12 months old prevented us from reaching our target of finalising 80% of IC reviews within 12 months.

Informal resolution

We pursued informal resolution of IC reviews where possible. We used various approaches to help resolve an IC review such as narrowing the scope of a review, providing an appraisal or preliminary view, and trying to reach agreement between the parties. In 2018–19, we finalised 599 IC reviews without a formal decision being made (90.9%).

We finalised 76 IC reviews (12.7%) after the applicant withdrew their application following:

  • action the agency took to resolve the issues in the IC review (such as issuing a decision and statement of reasons in a deemed access refusal case, or making a revised decision under s 55G of the FOI Act to give the applicant access to further documents or material), or
  • our appraisal of their case’s merits.

We also finalised 25 IC reviews by written agreement between the parties under s 55F of the FOI Act.

IC review decisions under s 55K of the FOI Act

The Information Commissioner made 60 decisions under s 55K of the FOI Act in 2018–19. Of these:

  • 37 decisions (61.7%) set aside and substituted the decision under review
  • 4 decisions (6.7%) varied the decision under review
  • 19 decisions (31.7%) affirmed the decision under review.

Of the decisions the Information Commissioner affirmed, two were revised during the IC review to give greater access to the documents sought under s 55G of the FOI Act.

Two were access grant decisions, where the Information Commissioner agreed with the agency that the documents were not exempt under the FOI Act and must be released.

The decisions we published under s 55K of the FOI Act continued to be an important part of our work. They addressed novel issues and built on existing FOI laws and judgments. They helped agencies interpret the FOI Act and guide them in exercising their powers and functions.

All IC review decisions are published on the AustLII website as part of the Australian Information Commissioner (AICmr) series.

Case Studies 2.11 and 2.15 describe IC review decisions made during this reporting period.

For more information about IC review decisions under s 55K of the FOI Act, see Appendix D, Review of FOI Decisions.

Case Study 2.11: Jack Waterford and Department of Human Services (Freedom of information) [2019] AICmr 21 (5 June 2019)

The applicant sought access to documents the DHS generated in response to a media request he made to them and a media article he wrote in the week before making the request.

On completing the request consultation process (s 24AB of the FOI Act), the DHS refused the applicant’s request on the basis that a practical refusal reason existed. They believed the request did not meet the identification requirements of s 15(2)(b) of the FOI Act (these require a request to supply enough information to enable the DHS to identify the document sought) and processing the request would substantially and unreasonably divert the DHS’s resources from their other operations (ss 24AA(1)(a)(i) and 24AA(1)(b) of the FOI Act).

The Information Commissioner was not satisfied that the request consultation notice fulfilled the requirements of s 24AB of the FOI Act, because it did not give the name of a contact person and how the applicant could contact this person, as s 24AB(2)(c) requires. Also, the Information Commissioner was not satisfied the DHS had taken reasonable steps to help the applicant to revise his request and remove the practical refusal reason (s 24AB(3) of the FOI Act). The DHS’s notice gave the applicant limited information to help him revise his request and from the applicant’s response it was apparent that he had concerns about the steps the DHS took to help him to revise the request.

The DHS also estimated it would take 238 hours to process the request. The Information Commissioner was not satisfied that the DHS discharged its onus to justify the estimated processing time. Also, the Information Commissioner was not satisfied that the DHS had proved that processing the request would substantially and unreasonably divert the DHS’s resources from its other operations.

Case Study 2.12: Justin Warren and Department of Human Services (Freedom of information) [2019] AICmr 22 (5 June 2019)

The applicant sought access to meeting agendas, minutes and other notes for meetings held between the DHS and the Minister for Human Services or Minister for Social Services between 1 January 2016 and 31 December 2016.

On completing the request consultation process (s 24AB of the FOI Act), the DHS refused the applicant’s request on the basis a practical refusal reason existed. The DHS asserted that processing the request would substantially and unreasonably divert the DHS’s resources from its other operations (s 24AA(1)(a)(i)).

The Information Commissioner was not satisfied the DHS took reasonable steps to help the applicant revise the scope of his request to remove the practical refusal reason (s 24AB(3)). The applicant had tried to revise the request but was unsuccessful because he did not understand the terms the DHS used. The Information Commissioner said that where it is apparent that an applicant’s attempt to revise the scope of their request doesn’t remove the practical refusal reason, the contact person should consider whether they could take additional steps to help the applicant revise their request.

The DHS estimated it would take more than 130 hours to process the request because every branch of the DHS would need to conduct searches for the requested documents. During the IC review, the applicant indicated he would be willing to reduce the scope of his request in light of information the DHS supplied. The DHS then conducted searches within the revised scope and advised that they could not locate any documents. The Information Commissioner considered that when an applicant proposes a revised scope based on advice from the agency that results in no documents being found, unless there are compelling reasons not to, the agency should generally consult with the applicant about why no documents exist and help them to revise the scope of their request before making a decision about the request.

Case Study 2.13: ‘QG’ and Department of Human Services (Freedom of information) [2019] AICmr 23 (5 June 2019)

The applicant sought access to: ‘A copy of all communication, including emails, correspondence, phone calls, internal memos, sms and faxes between Child Support and Complex Assessment departments relating to me.’

On completing the request consultation process (s 24AB of the FOI Act), the DHS refused the applicant’s request on the basis a practical refusal reason existed. The DHS asserted the request didn’t meet the identification requirements of s 15(2)(b) of the FOI Act (s 24AA(1)(b) of the FOI Act).

The Information Commissioner considered whether the agency had followed the request consultation process under s 24AB of the FOI Act. The Information Commissioner was not satisfied that the DHS had taken reasonable steps to help the applicant revise the scope of the request to remove the practical refusal reason (s 24AB(3). The applicant tried to revise the scope of the request based on the information the DHS supplied. The DHS had a very particular approach to interpreting terms the applicant used in the revised request such as ‘relating to’ and ‘including’. The Information Commissioner said that where an agency or minister takes a very particular approach to interpreting terms an applicant uses, it may be difficult for an applicant to revise the scope of a request to remove the practical refusal reason without the agency or minister suggesting what would be a reasonable request in the circumstances. The Information Commissioner noted that the DHS proposed a revised scope of the request at the start of the IC review and it appeared that this scope could have been proposed during the request consultation process.

The Information Commissioner noted that the FOI Guidelines explain that an agency or minister must read a document request fairly, being mindful not to take a narrow or pedantic approach to its construction. The Information Commissioner was satisfied that the applicant had supplied sufficient information for the DHS to identify the documents sought (s 15(2)(b) of the FOI Act).

Case Study 2.14: Seven Network (Operations) Limited and Australian Federal Police (Freedom of information) [2019] AICmr 32 (6 June 2019)

This is the first IC review decision to consider the application of s 46 of the FOI Act (where the disclosure of the requested documents would be a contempt of Parliament or a Court).

The applicant sought access to documents, including CCTV footage, related to an incident in the Parliament House precinct. The exemption under s46(c) of the FOI Act was applied on a basis that disclosure would infringe parliamentary privilege.

The FOI Guidelines explain that the term ‘parliamentary privilege’ refers to the privileges or immunities of the Houses of the Parliament, and the powers of the Houses to protect the integrity of their processes. The use of CCTV footage captured by the Parliament House CCTV system is subject to a code which restricts viewing, storing, accessing, releasing and disposing of CCTV footage without the approval of the President of the Senate and the Speaker of the House of Representatives (Presiding Officers).

The Information Commissioner also considered s 6 of the Parliamentary Precincts Act 1988, which states that the parliamentary precincts are under the control and management of the Presiding Officers. Given the authority of the Presiding Officers under the Parliamentary Precincts Act 1988 and their endorsement of the code, the Information Commissioner considered the code amounts to a rule of the Houses of Parliament that restricts the use and disclosure of CCTV footage captured in the parliamentary precincts and the act of disclosing CCTV footage contrary to the code would infringe parliamentary privilege.

The Information Commissioner was satisfied that conduct which improperly interfered with the free exercise by the House of Parliament of its authority or functions, such as the contravention of a rule or order of a House of Parliament, may constitute contempt of the parliament and infringe the privileges of the parliament.

The Information Commissioner affirmed the decision refusing access to the CCTV footage.

We have updated paragraphs 5.188 to 5.195 of the FOI Guidelines to refer to this decision.

Case Study 2.15: Rex Patrick and Minister for Resources and Northern Australia (Freedom of information) [2019] AICmr 13 (25 March 2019)

The applicant applied to the Minister for Resources and Northern Australia for access to diary entries relating to the National Radioactive Waste Management Facility at Kimba and Hawker. The Minister refused the request under s 24A of the FOI Act because no ‘diary entries’ exist.

During the IC review, the Minister’s office accepted that the term ‘diary’ included electronic calendars and other email calendars and schedules. The Minister’s office subsequently indicated the Minister was willing to process the request because the scope of the applicant’s request included the Minister’s electronic email calendars and schedules.

The Information Commissioner was satisfied that documents within the scope of the applicant’s request did exist.

FOI complaints

Under s 69 of the FOI Act, the Information Commissioner has power to investigate agency actions about the handling of FOI matters.

Part 11 of the FOI Guidelines explains that making a complaint is not an appropriate mechanism where IC review is available, unless there is a special reason to undertake an investigation and the matter can be dealt with more appropriately and effectively in that way. Generally, an IC review is the more appropriate way for a person to seek review of the merits of an FOI decision, particularly an access refusal or access grant decision. This approach accounts for the relatively small number of FOI complaints received compared with IC review applications.

In 2018–19, we received 61 FOI complaints and closed 22. This represents a slight decrease (1.6%) in lodgements compared with 2017–18 (when 62 FOI complaints were received) and a 24% decrease in finalisations compared with 2017–18 (when 29 FOI complaints were finalised). The decrease in the number of FOI complaints finalised is primarily the result of us receiving a sustained increase in the number of IC review applications and our focus on finalising IC reviews, in particular those over 12 months old.

Of the FOI complaints finalised during this reporting period, 81.8% were closed within 12 months of receipt — meeting the OAIC’s target of closing 80% of all FOI complaints within 12 months.

As in previous years, the most common complaints about the handling of FOI matters by agencies were:

  • agencies not meeting statutory timeframes
  • problems with consultation under practical refusal provisions
  • the imposition or amount of a charge
  • poor customer service (most commonly a failure to reply to correspondence).

In 2018–19, there was an increase in the number of complaints about decision-makers not stating their name and designation in the notice of decision as s 26 of the FOI Act requires and agency administration of the IPS.

FOI extensions of time

The FOI Act sets out timeframes within which agencies and ministers must process FOI requests.

Where an agency or minister is unable to process an FOI request within the processing period, they may request an extension of time from the FOI applicant or the Information Commissioner.

Where the applicant agrees to an extension of time in writing, the agency or minister must advise the Information Commissioner of the agreement to extend the statutory processing time as soon as practicable.

An agency or minister can apply to the Information Commissioner for an extension of time to the processing period where an agency or minister is able to demonstrate that the processing of the FOI request has been delayed because the FOI request is voluminous or complex in nature (s 15AB of the FOI Act) or where the agency or minister has been unable to process the request within the statutory timeframe and the agency or minister is deemed to have made a decision refusing the FOI request (s 15AC of the FOI Act). See Tables 2.7 and 2.8.

Table 2.7: FOI extension of time (EOT) notifications and requests received and closed

Year

2016–17

2017–18

2018–19

Received

4,412

3,367

3,785

Closed

4,420

3,333

3,779

During this reporting period, we finalised 84% of extension of time applications within five working days.

Table 2.8: FOI extensions of time (EOT) notifications and requests closed, by type

Request type

2016–17

2017–18

2018–19

Section 15AA (notification of EOT agreements between agency and applicant)

3,808

2,762

2,959

Section 15AB (request to OAIC by agency where voluminous or complex)

453

370

562

Section 15AC (request to OAIC by agency where deemed refusal decision)

112

122

178

Section 51DA (request to OAIC by agency for EOT for dealing with amendment/annotation request)

1

1

Section 54B (extension of the period to make an internal review request made by agency)

1

Section 54D (request to OAIC by agency for EOT where deemed affirmation on internal review)

29

38

37

Section 54T (request to OAIC for EOT for person to apply for IC review)

18

40

41

Total

4,420

3,333

3,779

FOI vexatious applicant declarations

The Information Commissioner has the power to declare a person to be a vexatious applicant if she is satisfied that the grounds set out in s 89L of the FOI Act exist.

During 2018–19, the Information Commissioner received nine applications from agencies under s 89K seeking to have a person declared a vexatious applicant. Eight applications were finalised in 2018–19, with three declarations being made, three refused and two withdrawn.

Declarations are published on the AustLII website as part of the AICmr series.

Case Study 2.16 describes an FOI vexatious applicant declaration made during this reporting period.

Case Study 2.16: Office of the Registrar of Indigenous Corporations and ‘PW’ (Freedom of information) [2019] AICmr 6 (13 February 2019)

‘PW’ was the subject of a vexatious applicant declaration made by a former Information Commissioner which expired on 3 June 2017. Between 26 July 2017 and 5 July 2018, PW engaged in a further 28 access actions.

In deciding whether to make the declaration, the Information Commissioner considered whether the agency had used other provisions in the FOI Act to lessen the impact of PW’s access actions on its operations and whether deficiencies in the agency’s FOI administration had contributed to the respondent’s access actions. This included: the impact of PW’s access actions on the agency’s other work, the size of the agency, the resources the agency could reasonably allocate to FOI processing, the impact PW’s access actions had on FOI administration in the agency and whether PW had cooperated reasonably with the agency to enable efficient FOI processing.

The Information Commissioner had regard to the parties’ submissions and was satisfied the agency had established that PW had repeatedly engaged in access actions that involved an abuse of process by unreasonably interfering with the agency’s operations.

The Information Commissioner decided that a declaration for three years was appropriate in circumstances where the respondent had previously been declared vexatious.