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Freedom of information: what your agency should know

A well-functioning freedom of information system is a necessity for any open, transparent government. For government agencies, the duty to provide individuals with information requires foresight and diligence.

According to Maddocks partner Melanie Olynyk, freedom of information applications today are far more common than they were when FOI legislation was introduced in 1982. In the 1984-85 financial year, there were about 5000 FOI applications in Victoria. In 2013/14, Victoria reported about 34,000 FOI applications.

What does it mean?

“FOI is all about providing a right of access to government information,” Olynyk said.

It ensures governments are held accountable for decisions, expenses and behaviour, enhancing transparency.

“It’s about providing members of the public the right to ask for any document held by the government,” she said. “It also gives people a right to ask for their personal information to be amended if it’s out of date, inaccurate or misleading.”

That document, Olynyk explains, could be a letter, a memo or a file note. Even emails, text messages and voicemails fall under FOI legislation. An individual requesting a document from the government doesn’t need to justify their request for information.

“They don’t have to give any reason at all,” said Olynyk. The member of the public may want the information to learn more about an area of policy or to ensure their taxpayer dollars are being well spent. According to Olynyk, most FOI requests are made by individuals seeking information about themselves. At the Commonwealth level, she explains, the Department of Human Services, the Department of Immigration and Border Protection and the Australian Taxation Office are in the top five of agencies who receive the most FOI requests, while in Victoria, the Victorian WorkCover Authority, Transport Accident Commission, Victoria Police and hospitals all commonly field FOI requests.

For example, a person might request their patient records, or what is contained in a police, transport accident or ATO file about them, Olynyk says.

Exemptions and inclusions

Almost all government agencies at the state and federal level are subject to freedom of information legislation. Those that are excluded include the Auditor-General, Aboriginal Land Councils and Land Trusts, and various security agencies including the Australian Security Intelligence Organisation.

While there is a general right to access documents, there are certain circumstances where access can be withheld, such as for cabinet documents, documents subject to legal professional privilege and electoral rolls.

“You might hear ‘conditionally exempt’ in the Commonwealth context,” Olynyk said.

Conditionally exempt documents include those covering Commonwealth-state relations, business affairs and personal privacy. But public service agencies cannot simply refuse to supply documents that fall into one of the eight conditionally exempt categories. Instead, the agency has to determine whether releasing the document would be contrary to the public interest.

Different agencies have different approaches to FOI, says Olynyk.

“The FOI Act has been tweaked over the years,” she said. “But you know, the most important thing is the way that the laws are applied.

“You’ll have a lot of agencies that will be very practical and realistic — they won’t claim every exemption that they could.”

Public servants should be aware that unless a document is exempt, all their correspondences as government employees are publicly accessible information.

Changing contexts

In 2010, the Commonwealth 1982 Freedom of Information Act underwent a number of reforms, to improve the process which delivers information to the public. For federal government FOI requests, an application fee was abolished.

“It also included this presumption of openness,” said Olynyk, with the reforms intending to increase transparency. “The starting point was: ‘you must provide access unless …'”

The Office of the Australian Information Commissioner was also established, as was the Freedom of Information Commissioner. Established to promote open government and to improve information policy, the OAIC’s role includes reviewing how FOI legislation requirements are being met by ministers and agencies.

Since 2010, however, there have been some major changes to the OAIC.

“It’s been announced that the office is to be disbanded,” Olynyk explained. “[The federal government] did introduce legislation to achieve that, but the office remains in this sort of limbo state.

[pullquote] “… everything you write, every email you send, every message that’s recorded, is ‘FOI-able’.” [/pullquote]

“So more recently the Australian Information Commissioner has moved on, and there is no one in the role of the FOI commissioner. There is only an acting information commissioner, Timothy Pilgrim.”

This has introduced uncertainty for agencies and legal experts around FOI, Olynyk says.

“There’ve been a lot of questions raised about this,” she said. “‘Is the office really gone?’ The government’s come out and said they’re still giving funding to the office — transitional funding of about $1.7 million, whereas in previous financial years, FOI alone got about $5 million.

“There’s been quite a bit of opposition to this starving of resources,” said Olynyk, with questions raised over the legality of the defunding. One of the commission’s most important roles is to act as a first step of external review after an agency makes a decision to deny an FOI application, before the dispute moves to the tribunal.

“You’d have to think they’re not doing many reviews at this stage,” said Olynyk. In Victoria, where Olynyk practices, there have also been changes, with the Labor government proposing to reduce the time agencies have to process FOI requests and replace the Victorian Freedom of Information Commissioner with the new Office of the Public Access Counsellor.

Whatever changes are coming to federal and state FOI authorities, the public’s interest in information held by the government seems a certainty. Not only do public servants need to know how to comply with FOI legislation, but they also need to consider possible FOI requests when carrying out their work.

“The big thing for public servants is realising that everything you write, every email you send, every message that’s recorded, is ‘FOI-able’,” said Olynyk. “What might seem a funny little joke in an email today might not be so funny in the future.”

Written by Jessie Richardson

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The Mandarin

The Mandarin staff journalists.