Australia's promised pro-disclosure culture is mostly smoke, not much light

By Stephen Easton

September 21, 2017

  • About half of Commonwealth FOI refusal decisions are overturned on appeal.
  • Automatic refusals became a tool to manage request backlog, new audit claims.
  • Cuts savaged FOI regulation, now OAIC plans first steps against non-compliant agencies.

Landing just before next week’s International Right to Know Day, a new audit reveals that implementing the federal Freedom of Information Act hasn’t led to the pro-disclosure mindset that was one of the key intentions of the act. Three public sector departments are shown to be going through the motions with little regard to what the law demands.

Findings relating to the Office of the Australian Information Commissioner show its spending on FOI decisions has dropped significantly after the government’s failed attempt to abolish the office, limiting its ability to fulfil its purpose.

Responding to FOI requests takes time and money and frankly, some of them are just silly. But overall the public reaps a valuable return in the form of the actual information that comes out and what the applicants do with it. This in turn contributes to confidence, both in specific ministers and departments, and in government more generally.

The audit shows that agencies often start by erring on the side of secrecy rather disclosure; when rejections are reviewed, either by the OAIC or the agency itself, they are now overturned about half of the time. In 2011-12, the OAIC only varied or overturned about 30% of refusals by agencies.

While the OAIC has had to prioritise and scale down its ambitions, the audit office reports the number of applications across the public service has increased by 53.4% in the five years since the act was passed.

A limited regulator

Of course the audit does not pass judgement on the government’s past hostility towards the OAIC but the data it contains shows some of the impact the change of government in 2013 had on the FOI system. Funding for FOI reviews dropped:

The auditors asked the OAIC if this reduction had meant it had stopped doing any of its various jobs. The office said it just has to do less of some things:

“There are no functions that the OAIC is not now performing. The OAIC prioritises its activities within the resources available to it, to best deliver all its functions. As such, our ability to undertake intensive work, for example, around the IPS scheme and some discretionary activities such as Commissioner initiated investigations may not be as feasible as in previous years but we still plan to undertake some limited work in these areas.”

“Since 2012, OAIC has undertaken limited FOI regulatory activity,” the report states. It also notes the effect on the agency of being told in December 2014 that it would have to shut its doors “included reducing staff by 23 and closing the OAIC’s Canberra office”.

The OAIC is allowed to refuse applications for review on various grounds, and apparently raised the bar after it developed a big backlog of requests “on hand” so that the number of times it declined to review decisions doubled between 2012–13 and 2013–14.

Applications for review on hand, 2010–11 to 2015–16.

The commissioner dismissed 300 applications for review in that period, 56.7% of those on the basis they were “frivolous, vexatious, misconceived, lacking in substance or not made in good faith”.

The report quotes the OAIC’s best guess about why it became stricter. It “can only speculate that, given the backlog of matters at that time, a stronger line was taken by the decision-makers on whether the review was lacking substance” and the auditors suggest this is not the way things should be:

“While the ANAO notes OAIC’s explanation, it considers that the exercise of a discretion not to review an application should be based on the merits of the application rather than the discretion being used as a workload management tool.”

But what else can the OAIC do? In 2015-16 it met its target to finalise 80% of merit reviews within a year, for the first time. The aim used to be six months, but in 2015-16, the average was 372 days. Some reviews still ran much longer; the slowest reported in was well over three years coming.

“There is very limited quality assurance or verification of the reliability of FOI data reported to OAIC by entities,” the auditors note and they suggest the OAIC should remedy that.

But their only formal recommendation is for the OAIC to publish a single, clear policy statement about its regulatory approach, to which the office agrees and responds:

“Although aspects of such a document are already contained in the FOI Guidelines the OAIC acknowledges that pulling this information together and expanding on it in a single policy document will assist agencies and the public better understand the OAIC’s approach to its FOI regulatory activity.”

Three ‘generally effective’ departments

The Australian National Audit Office report concludes that the administration of FOI applications by three departments — the Attorney-General’s, Social Services and Veterans’ Affairs — was “generally effective” but it isn’t clear what this means exactly. They all follow a process and reach an outcome, but when they or the OAIC goes back and reviews decisions, about half are overturned on appeal.

The auditors were looking to see whether they “effectively and efficiently process FOI document access applications” and voluntarily release information in line with the Information Publication Scheme. The current act was supposed to encourage “pro-disclosure culture” but good luck finding anyone outside government who would agree this has come true. A 2014 review of FOI processing in the Department of Human Services found it going the other way.

The first criterion was later revised to consider “effectiveness” alone. “During the course of the audit, it became apparent that due to the selected entities’ differing models of FOI administration, efficiency comparisons could not be undertaken,” the report states.

None of the three departments were fully compliant with their IPS obligations under the FOI Act nor did they meet another obligation to “review the operation of the IPS in their entity” by the end of April, 2016. The AGD has met five of 10 IPS obligations, DSS ticks the most boxes with nine, and DVA is in the middle on seven.

The Department of Immigration and Border Protection receives the most FOI requests and has seen them rise.

Numbers of FOI applications, Top five entities, 2013–14 to 2015–16.

Refusals have stayed fairly stable at about 10% of applications, while the total number of exemptions being claimed by federal agencies has risen by 68.4% compared to the 56.7% rise in the number of applications. One claim can be subject to multiple categories of exemption, and two in particular are used a lot more than they once were.

Invocation of Section 33 of the act — relating to information that might compromise national security, defence or international relations — has increased 250% in the five years since it was passed. Another has gone up closer to 300%, that which exempts information that “would reasonably be expected to affect certain operations of agencies” by causing:

  • prejudice to the effectiveness of procedures or methods for the conduct of tests, examinations or audits;
  • prejudice to the attainment of the objects of particular tests, examinations or audits;
  • a substantial adverse effect on the management or assessment of personnel; or
  • a substantial adverse effect on the proper and efficient conduct of operations.

Some of the other conclusions contained in the ANAO report include:

  • The three departments it audited “generally appear to be providing appropriate assistance to applicants” but could do a lot better if their computer systems allowed them to search the content of documents.
  • 88% of applications were processed within the 30-day period required and requests for internal review are trending upwards.
  • Across the three departments, 4/15 disclosure log updates were late.

Australian Information Commissioner Timothy Pilgrim wrote to Auditor-General Grant Hehir to confirm the OAIC was developing an FOI regulatory action policy that would provide agencies with a clearer statement of its regulatory approach with respect to entity non-compliance with the FOI Act.

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