Right to Know Day: information commissioner addresses federal FOI officers


Australian information and privacy commissioner Angelene Falk.

The Australian Information Commissioner gave a keynote address to federal FOI officers at a meeting of the Information Contact Officers Network (ICON) this week.


For the OAIC, 2018 has been a year of achievement, continuity and change. Notably, our long-serving Privacy Commissioner, and more recently Australian Information Commissioner, Timothy Pilgrim retired in March.

After a period acting in the roles, in mid-August I was appointed by the Governor-General as Australian Information Commissioner and as Privacy Commissioner, and I’m very pleased to be with you here today in that capacity.

It’s a great honour to have the opportunity to serve the Australian people in these roles, particularly at a time when there is heightened awareness, both in Australia and globally, of the importance of transparency and accountability in information access and information handling.

“FOI is just one avenue for individuals to exercise their right to access government information. The starting point should really be the proactive release and publication of information and documents.”

Access to information through the Freedom of Information Act 1982 (FOI Act) supports transparent and accountable government. And the Privacy Act also supports transparency and accountability in the handling of personal information by government and business.

This morning I would like to take the opportunity to reflect on our role and purpose, the role of the OAIC as a regulator, and for you as FOI practitioners. To that end, I will provide information on the broader Open Government landscape and, in relation to our State and Territory counterparts, information on what we can see from our analysis of Commonwealth agency statistics; and what we are seeing through the applications for Information Commissioner reviews.

My approach over the next three years will be to use our evidence base to take a proactive approach to enhance FOI practice across the Australian Public Service and to support the community’s understanding and ability to exercise information access rights.

We will also have a strong focus on supporting agencies to fully operationalise the push model of proactive publication, which is a hallmark of the Commonwealth FOI Act.

The information access landscape

So let’s start with a recap of the objects of our FOI Act. As we look across our information landscape, it’s clear that not only is there heightened awareness of access to information issues, community expectations are also evolving.

Everyone here in this room has a critical role to play in meeting these expectations and upholding the objects of our freedom of information laws. By managing government-held information as a national resource, for public purposes, you are actively promoting public participation in our democracy.

The proactive push model embedded in the FOI Act through the Information Publication Scheme and Disclosure Log provisions provides two critical tools to help achieve this goal. Through providing access to documents on request, you are also enabling the scrutiny, review and discussion of government policies and activities that supports better informed decision making.

Our purpose at the OAIC is to promote and uphold these information access rights, alongside privacy rights, and our role in promoting open access to government information is as important as ever. We all have a role to play in promoting transparency and accountability, and in doing so, in building the community’s trust in government.

Open Government National Action Plan

At the national level, the Australian Government’s commitment to open government is a key element in this transparent and accountable approach.

The Australian Government has joined the open government partnership and last week released the second Open Government National Action Plan. Developed in collaboration with the community, the Plan is aimed at enhancing the access to information, civic participation, and public accountability.

It, together with the first National Action Plan, is intended to build greater openness and transparency into the way government deals with the community, so it can deliver better outcomes. The OAIC is a member of the Open Government Partnership Forum that developed the plan, which focuses on:

  • strengthening the national anti-corruption framework
  • enhancing the transparency of political donations and funding
  • improving the sharing, use and reuse of public-sector data
  • improving public service practices using place-based approaches
  • enhancing state and territory participation in the Open Government Partnership
  • enhancing public engagement skills in the public service
  • engaging Australians in the Independent Review of the APS and
  • expanding open contracting and due diligence in procurement.

Three initiatives of particular relevance to practitioners target improvements in the sharing, use and re-use of public sector data; assessing community awareness and experience of their access to information rights; and enhancing public engagement skills in the public service.

The first of these involves the implementation of data governance reforms announced earlier this year – including the appointment of an interim National Data Commissioner, and the proposed Commonwealth Data Sharing and Release Act to streamline access to and use of data.

As you would expect, while these changes are intended to promote better sharing of public sector data, the government has also made it clear they need to build public trust in the use of this data by improving data privacy and security through strong and consistent safeguards.

Consultation on the design of the proposal is continuing, led by the Interim National Data Commissioner. I am engaging with this process to help ensure greater access to data while protecting privacy.

The second commitment I will highlight is to enhance engagement skills through the use of open dialogue and deliberative processes to allow richer communication and engagement on policy issues. Allowing greater access to information as part of this dialogue is highlighted as critical to ensuring meaningful input, and improving transparency and civic participation.

The third commitment of particular relevance is to engage the states and territories in information access issues to strengthen a culture of open, transparent and accountable government at all levels, including through the Open Government Partnership. This was a key topic at the meeting of Australian and New Zealand Information Access Commissioners that I hosted in Sydney last week.

This initiative has a focus on collaboration. Information Access Commissioners are also conducting a survey to increase our understanding of the community’s awareness of their information access rights, and their experiences and outcomes in exercising that right. A better understanding of these issues will help inform how we can promote and support these important rights.

Managing access to information

The broad interest in transparency, accountability and access to information is reflected in the other work of the OAIC, and we continue to experience increases in the volume of work in both the FOI and privacy aspects of our role.

For those of you who may be new to our ICON network, I would like to briefly recap some of our key FOI functions. These include:

  • reviewing FOI decisions made by agencies and ministers – referred to as Information Commissioner or IC reviews;
  • investigating complaints about agency actions under the FOI Act;
  • issuing Guidelines under the FOI Act, which ministers and agencies must have regard to; and
  • considering extension of time applications.

We also:

  • consider requests to make a vexatious applicant declaration
  • make disclosure log determinations — that is, that the requirement to publish information in a disclosure log does not apply to specified information
  • assist agencies to publish information under the Information Publication Scheme and review, investigate and monitor compliance with the scheme; and
    monitor, investigate and report on agencies’ compliance with the FOI Act.

More broadly, our role is to promote awareness and understanding of the FOI Act, including providing information and advice. To that end our enquiries service provides an important awareness and information avenue, in addition to our web resources.

Each year we receive about 2,000 phone calls and written inquiries about FOI matters. About half relate to general processes such as how to make an FOI request or complaint. We will develop further guidance for applicants this year.

We also collect information and statistics from agencies and ministers about FOI matters, and I would like to share some insights into what we’re seeing from these figures.

Update on FOI statistics

At our meeting of Australian Information Access Commissioners last week, we discussed our national dashboard on the public’s use of FOI laws in 2016-17.

It’s very interesting to consider our Commonwealth trends in light of the other jurisdictions. I should caution that the models in place across the country differ, for example the Commonwealth, NSW and QLD have proactive or “push” model FOI laws.

In 2016-17 there were almost 40,000 applications or decisions at the Commonwealth level — a similar level to Victoria, and more than double the number in WA and NSW.

Of those, there were 90% where full or partial access was granted, compared to 97% and 96% in WA and Victoria, respectively. Only 10% were refused in full at the Commonwealth level — compared to about 20% in Queensland and South Australia.

Insights into the Commonwealth statistics are made possible through your reports to us, and we thank you for them. Recently, we have seen some reduction in requests for personal information and non-personal requests.

A key factor has been the introduction of an administrative access scheme for personal information by a major government agency. This is also contributing to a sizeable improvement in the proportion of FOI requests processed within the statutory timeframe.

The majority of FOI requests at the Commonwealth level are for documents containing personal information. Generally, more than four in five requests are for personal information.

The personal privacy exemption in section 47F is generally the most claimed exemption.

IC reviews

As I mentioned, there is an increasing demand for the expertise of the OAIC to inform the work of business and government.

This is reflected in the sustained growth in privacy complaints and Information Commissioner reviews over the past few years.

For the OAIC, review of decisions to refuse access to government documents is designed around four key principles.

  • It is intended to be as informal as possible.
  • It is intended to be non-adversarial.
  • It is intended to be timely; and
  • It is a merit review process where I make the correct or preferable decision at the time I make my decision.

The Information Commissioner also has the power to review decisions relating to charges and refusal to amend or annotate personal information records. I can also review access grant decisions: decisions to grant access to a document where there is a requirement to consult with a third party under the Act.

An affected third party can apply for an IC review if they contend that information an agency or minister decided to release is exempt under a relevant provision such as personal privacy. My Office has published a range of documents that outline our processes and provide guidance on how I exercise these functions.

This includes our FOI Guidelines, Regulatory Action Policy and the Procedure Direction. In an IC review, the agency or minister has the onus of establishing that the decision is justified or that I should give a decision adverse to an applicant. Agencies and ministers must also use their best endeavours to assist me to make the correct or preferable decision.

During the IC review process, the OAIC assists parties to reach agreement to resolve the review. We also invite an agency or minister to consider whether they may revoke or vary an access refusal decision to favour the applicant. This facilitates the prompt release of further material to the applicant. Many of the IC review applications are resolved through this process, or the issues in contention narrowed.

Of course, some matters will not be resolved and in general, around 20% of matters will progress to formal decisions. If this occurs, I must make a decision after a merit review of the matter under s55K of the Act. When conducting a merit review, I can access all relevant material, including material claimed to be exempt. I can also consider additional material and submissions not considered by the original decision maker.

If I find that the original decision was not correct in law or not the preferable decision, I can vary the original decision or set it aside and substitute a new decision. For example, I may decide that a document is not an exempt document under the FOI Act or that an access charge was not correctly applied.

While the IC review process is intended to be as informal as possible, it is of course preferable to make the best decision at first instance. The starting point should be to release as much information as you can at the first instance and, if exemptions need to be relied on, communicate these in a way that an applicant who has less knowledge of the nuances of the FOI Act will understand.

I encourage you to familiarise yourself with recent IC decisions, all of which are available on AustLII.

Themes in IC reviews

In terms of some of the key themes across the FOI landscape, we are seeing a high volume of IC review applications relating to decisions made under Part III of the FOI Act.

This includes the use of practical refusal provisions: because the work involved in processing the request would substantially and unreasonably divert the resources of the agency from its other operations, or because the request does not provide sufficient information, and refusals where an agency has taken reasonable steps to locate documents within the scope of the request and documents cannot be found or do not exist.

The significant increase in practical refusals is reflected in an increase in the number of complaints and IC review applications about agencies’ reliance on these provisions. This includes concerns raised by applicants about whether agencies are taking reasonable steps to assist them to revise the scope of the request during the consultation process, as required under the FOI Act.

Another common factor is whether an agency has taken all reasonable steps to locate documents before refusing a request. In many of our reviews, agencies are providing more detailed explanations around these searches, and I would encourage you to include these explanations to applicants as part of your original decisions.

The OAIC provides guidance on what constitutes reasonable steps through its FOI Guidelines and IC review decisions, as well as during the case management process. We hope that through this guidance, agency decision-making on these issues will become more robust and the number of IC review applications relating to these provisions will decrease.

Administrative Access

I want to talk a little now about administrative access, which was a theme from our last ICON session.

FOI is just one avenue for individuals to exercise their right to access government information. The starting point should really be the proactive release and publication of information and documents.

Dealing with requests for information and documents on an administrative basis can offer benefits to both agencies and members of the public. It’s often a quicker, more flexible and inexpensive alternative to FOI. It also promotes the objects of the FOI Act, including:

  • increasing public participation in Government processes, with a view to promoting better-informed decision-making;
  • increasing scrutiny, discussion, comment and review of the Government’s activities;
  • increasing recognition that information held by the Government is to be managed for public purposes, and is a national resource; and
  • facilitating and promoting public access to information, promptly and at the lowest reasonable cost.

Earlier this year we sought feedback on our administrative access resource, and we have now revised our guidance to:

  • recommend agencies and ministers seek an FOI applicant’s consent before dealing with their request through the administrative access scheme;
  • suggest that agencies and ministers explain to applicants the implications of using administrative access, in particular, that it is not subject to review rights; and
  • clarify the interaction between administrative access and the Privacy Act 1988, where a request is made for an individual’s own personal information.

The revised guidance also includes a checklist for agencies. Our focus is to promote good decision making, and reviewing and updating our resources is an important part of this.

We also want to hear your suggestions, so I encourage you to provide feedback to us on these issues and at future ICON sessions, through the feedback forms to be shared after this event. You can also talk to our FOI team here today.

Information Publication Scheme

The proactive release and publication of information also underpins the Information Publication Scheme. This was introduced in 2011 with the aim of promoting greater transparency and accessibility across Australian Government agencies.

At our last ICON session in March, we advised that we would be conducting an agency-wide review of its operation. I’m pleased to advise that 82% of agencies completed the voluntary survey. Thank you to those in the room who submitted responses to the online survey.

The OAIC is giving close consideration to the responses, which indicate a continued commitment to proactive publication across agencies, and also some areas for further focus. We will also consider the comments provided as part of the survey when reviewing our guidance and other resources to assist your agency to comply with the scheme.

Right to Know Day

These are all topical issues – particularly in the lead up to International Right to Know Day – a day to encourage the community to explore their information access rights.

The idea of Right to Know Day was proposed during a meeting of information access advocates in Bulgaria in September 2002. Since then it has grown into a global event that recognises citizens’ right to access government-held information, and reinforces the importance of transparency in building trust in government.

Information Access Commissioners are hosting a number of events around Australia this week, including two yesterday: the Solomon lecture from Queensland, delivered this year by Professor Ken Smith; and a joint panel hosted by Monash University and the Victorian Information Commissioner. Recordings of both these events should be available online in coming days.

The OAIC has also created a campaign website and a new video series to mark Right to Know Day – including one focusing on your role as FOI practitioners.

And on Right to Know Day itself we are hosting a community event at Wynyard in Sydney.

These efforts highlight the role Information Commissioners play in promoting and upholding the fundamental right of the community to access government information. There’s more information on our website.

We’ve also updated our tips for FOI decision makers to provide clear and informative advice for better practice under the FOI Act.

Conclusion

As the Freedom of Information Act states, “information held by the Government… is a national resource”.

As FOI practitioners, you have a vital role as managers of this information. As the regulator tasked with various functions under the FOI Act, we understand and appreciate the important work that you do and the challenges you may face.

At the OAIC, our focus and commitment is to continue to develop the FOI capabilities of Australian Government agencies and to promote best practice.

As part of your commitment to information access, I would also encourage you to champion the proactive publication and release of information within your agencies.

In this way, we can continue to grow a culture of openness as part of a transparent and accountable government.

Angelene Falk is the Australian Information Commissioner and the Privacy Commissioner. A separate role, Freedom of Information Commissioner, also exists in the enabling legislation for her office but has been left vacant by the government since December 2014.

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