In 1987, the Senate Standing Committee on Legal and Constitutional Affairs reported on the operation and administration of the FOI Act, and recommended that the ombudsman remove the role of supervisor and reporter with respect to the FOI Act. It approved many of the amendments to the FOI Act in the bill and recommended that the bill proceed, subject to certain proposed changes.
ANAO Report—Administration of FOI Requests—June 2004
Its purpose was to widen public access to information held by the Commonwealth and to create an independent post of FOI Commissioner, held by the Commonwealth Ombudsman. The Attorney General's Department [should] take a more active role in monitoring agency compliance with the requirements of the FOI Act.
State Ombudsman reports and inquiries
This could be achieved by including a more detailed analysis of the collected statistics for publication in the FOI Annual Report and providing feedback to the Chief Executives of agencies where non-compliance with the provisions of the FOI Act is identified.
P ART 3—I NVESTIGATION INITIATION AND METHODOLOGY
FOI complaints to the Ombudsman
Reason for the own motion investigation
This included a review of the Commonwealth Ombudsman's complaints database of FOI-related complaints received in the period 2003-2004. It also included an analysis of FOI-related decisions from the AAT and recent statistical information from A-G. The aim of this study was to determine to what extent the handling of VOB requests met the requirements of the law, in particular with regard to timeliness and decision-making.
20 Where a final certificate is issued, the AAT's role is limited to determining whether there were reasonable grounds for its issue. Under section 36(3) of the Freedom of Information Act, the minister can block the release of an internal working document if he considers that "disclosure of the document would not be in the public interest".
P ART 4—I NVESTIGATION RESULTS —E XTERNAL DATA
Administrative Appeals Tribunal findings
An FOI request may be made in non-specific terms, which may require an agency to speculate on the type of material that might fall within the scope of the request. A decision by an agency to request, accept or deny the transfer of a request under Section 16 must be in writing: Bienstein v Commonwealth Ombudsman [2003] AATA 1197. In a situation where an agency makes a claim under Section 24A of the Act, it is better to explain that the documents cannot be found or do not exist rather than tell the applicant that his/her application has been rejected: Herdman v Centrelink [2003] AATA 103.
The requester should not be responsible for continuing the agency to which the information request was made to ensure that the agency locates and provides all materials to which the requester is entitled: Kapeen-Gangitano v Secretary, Department of Family and Community Services [2003 ] AATA 1163.
Observation
Commonwealth Ombudsman’s complaints management database
Statements
These statements are required to be updated at three-month intervals where practicable, and in any event within 12 months of the previous statement. The NAA provides a link to those statements on its website at Another agency did not have its statement with 9 on the NAA website, but it claimed. This was also the finding of the ANAO's 2004 report, Managing Freedom of Information Requests, which found that only 48 per cent of agencies subject to the FOI Act appeared to have provided such statements to the NAA.24. Table 5—Response times for participating agencies receiving a general mix of personal and non-personal FOI requests. Where an agency is considering the release of a document affecting a state government, the business affairs of a commercial organization or individual personal information about an individual (a third party), that time limit may extend to 60 days, in accordance with ss 26A , 27 or 27A of the FOI Act. With the tabling of the 2004–05 FOI Annual Report in December 2005, that information is now included. Nevertheless, from the data in Table 4, it can be seen that there has been a proportional increase in the number of personal FOI requests that took more than 60 days to process: from about eight percent in 2001-2002 to twelve per year. cent in 2003-2004. In addition, there are proportionally more 'other than personal' VVI requests that take more than 60 days to process than is the case for personal VVI requests. P ART 5—I NVESTIGATION RESULTS —FOI CO - ORDINATION , GUIDELINES AND TRAINING FOI co-ordination For some agencies, it has been encouraging that FOI guidelines and checklists are available on the agency's intranet. At least one of the major agencies used a monthly teleconference for their FOI practitioners to discuss FOI-related matters. The two agencies have developed their own online information management system to track FOI requests against a checklist. This study revealed that some agencies had developed comprehensive guidelines and checklists that were likely to be useful to other agencies if these FOI resources became more widely available. P ART 6—I NVESTIGATION RESULTS —A GENCY FOI FILES If the applicant has not paid a fee or requested a waiver, the agency must invite the applicant to do so. If the applicant has made an otherwise valid request and applied for a waiver of the application fee, s 30A requires the agency to make a decision on that application within thirty days. If the agency decides not to grant a waiver, it must notify the applicant as soon as possible so that the applicant can pay the fee to process the application. In one particular case, the agency took four months to inform the applicant that a fee was still required to make the request valid. In one of the major FOI receiving agencies, application fees are automatically waived in cases where an applicant applied for personal information. In two cases, a charge letter had only been sent to the claimant in the last week of the allotted 30 day processing period. This matter was recognized and covered in some detail in paragraphs 4.17-4.32 of the ANAO's 2004 report, Administration of Freedom of Information Requests. The Ombudsman recommends that an applicant should be formally notified when a request is deemed to have been withdrawn. If so, it is at least recommended that a note be placed on the applicant's file that a conscious decision has been made to consider the request expired. At a third-party agency, application fees are often waived "for administrative reasons" and fees are not always charged. In at least two other agencies, fees and charges are waived when there are significant delays in processing applications. The Ombudsman supports the ANAO's recommendation to update the existing guidance on fees and charges to provide more comprehensive guidance. Such delays can often be exacerbated during periods of temporary staff shortages, particularly around holiday periods when the requirement to meet a 30 calendar day deadline can be difficult. Finally, whenever possible, it is recommended that agencies try to meet requests for information outside the FOI Act, in accordance with s 14 of the Act. Commonwealth administrative law reforms in the 1970s and 1980s placed particular emphasis on the reasoning process behind the decision. Well-considered and comprehensive reasoning is now a central requirement for any decision subject to administrative review. In the context of FOI, statement of reasons should include a consideration of the arguments for and against release, particularly where an express or implied public interest weighing test is applied. In recognition of the importance of handling FOI requests consistently and appropriately, [this agency] appointed a full-time FOI Coordinator approximately 18 months ago. With the more systematic and coordinated approach to FOI matters that this position has brought, I believe that our FOI practices have improved significantly and that many of the matters identified in your report have been specifically addressed. Thank you again for the opportunity to respond to your assessment of our FOI practices. P ART 7—P ROPOSALS FOR THE FUTURE ADMINISTRATION OF THE FOI A CT The FOI and the privacy legislation both regulate how information should be handled within the government, but with different objectives. The emphasis on protection and secrecy of information is much stronger in privacy legislation, albeit according to specific legal criteria. Many FOI requests have privacy implications — especially when the documents involve the interests of a third party — and those requests may create a need to balance conflicting demands of privacy and open government. Commissioner with responsibility for oversight and enforcement of the Privacy Act, and the power to provide guidance to agencies, conduct audits, investigate complaints, conduct ex officio investigations and make provisions enforceable in Federal Court. Achieving better FOI practices Privacy Commissioner - it is necessary to ensure that the principles of openness and privacy have a clearly identifiable and unambiguous advocate - they were. If the Privacy Commissioner is given the role of FOI Commissioner, there is a risk that FOI will become a "poor cousin" given the tendency of some agencies to favor secrecy over openness. Ombudsman - although several organizations felt that an Ombudsman with expanded powers and resources could fulfill the role of FOI Commissioner, most members of the review felt that this additional role would not fit with what was considered the agency's primary role. complaint handling role; moreover, the Ombudsman's role in maintaining the integrity of government could be compromised if that office took responsibility for the implementation of certain legislation other than the Ombudsman Act 1976. The broadening role of the Commonwealth Ombudsman 2000 recommended that the duties of the FOI Commissioner described in the Bill be 'transferred to the Commonwealth Ombudsman and that a specialist unit be established within that office to support the Commonwealth Ombudsman in this role'. They can be perceived as being "caught" too quickly, either by the bureaucracy or by the relevant elements. The proposed FOI Commissioner will for the first time provide independent and effective oversight of the implementation of the Act.31. Some agencies show a clear commitment to FOI and support the overall objective of the Act, which is to extend as far as possible the right of the Australian public to access information held by the Government. Commissioner, possibly as a specialized and separately funded unit within the Office of the Commonwealth Ombudsman. A TTACHMENT A Acronyms and AbbreviationsAgency response times to FOI Requests—as reported in FOI Annual Reports
FOI guidelines and training
Acknowledging requests in a timely fashion
Notification of fees and charges
Processing requests
Decision letters
Agency responses to the Ombudsman’s draft findings
Current problems
An FOI Commissioner
The Commonwealth Ombudsman and the role of FOI Commissioner
