CHAPTER 5 | looking at the agencies

There is a close relationship between democracy, accountability and transparency. The purpose of the Freedom of Information Act 1982 (the FOI Act) is to extend, as far as possible, the Australian community's right of access to information in the Australian Government's possession. The FOI Act expressly empowers the Ombudsman to receive and investigate complaints about the actions of Australian Government departments and agencies in response to FOI requests. The Act also requires agencies to inform applicants of their right to complain to the Ombudsman about FOI matters. The Ombudsman's role is to ensure that agencies maintain sound records, provide information clearly and accessibly, and have an open and responsive approach to complaint handling.

Complaints about FOI

During the year, we received 236 complaints and finalised 229 complaints about the way Australian Government agencies handled requests under the FOI Act (see Table 5.3). This is a 10% decrease from the 263 complaints received in the previous year.

As in previous years, the bulk of complaint issues during the year related to the processing of FOI requests, with two-thirds concerning delay. Agencies continue to take more time to make decisions than the FOI Act allows. In some cases staff appeared to have problems recognising FOI applications as such and forwarding them to the appropriate area for processing.

'… the bulk of complaint issues … related to the processing of FOI requests, with two-thirds concerning delay.'

Where the Ombudsman finds there has been delay, the usual remedy is to encourage the agency to speed up the processing and give an apology. For some complaints we have suggested more, such as a remission of fees and charges. Occasionally, the Ombudsman requests that the agency provide appropriate staff training and remind staff of the statutory time limits.

It is not always possible for agencies to identify all relevant documents relating to an FOI application in the first instance. In one case investigated this year, the agency provided further documents to the applicant following an internal review by the agency and then again after investigation by the Ombudsman of the applicant's complaint. Our investigation found that the existence of the further documents only became apparent in the context of continuing inquiries.

'Another common complaint issue was about the correctness of the FOI decision itself.'

In these circumstances, given the nature of the documents requested and the relative obscurity of the procedure to which they related, we were reluctant to criticise the agency. We did, however, negotiate a waiver of the fees for the internal review request and a review of FOI procedures within the agency to ensure that, in future, the agency's FOI officers received appropriate technical advice relating to requests about technical processes.

Another common complaint issue was about the correctness of the FOI decision itself. The majority of these complaints were not investigated, mainly because the complainants had not yet exercised their review rights. The FOI Act provides that an applicant who disagrees with a decision under the Act (for example, an exemption claim or an FOI charge) can seek internal review of that decision by a more senior officer of the agency, followed by an appeal to the Administrative Appeals Tribunal.

Own motion investigation

In the last quarter of 2003–04, the Ombudsman conducted an own motion investigation into the quality of FOI processing by Australian Government agencies. This investigation follows on from the 1999 Commonwealth Ombudsman's report, Needs to Know (available on our website), and from the work done earlier in the reporting year by the Australian National Audit Office, Administration of Freedom of Information Requests. During this investigation, we:

• reviewed our office's complaint records
• analysed decisions of the Administrative Appeals Tribunal
• reviewed agency guidelines
• analysed a selected sample of FOI files from a range of agencies.

In early 2004–05, we will publicise the general trends identified in the investigation. As the sample size is limited, we do not propose to identify specific agencies. Issues of concern will be raised with individual agencies.