CHAPTER 7Looking at the agencies

The purpose of the Freedom of Information Act 1982 (FOI Act) is to extend, as far as possible, the legal right of individuals to obtain access to documents held by Australian Government agencies. The Act also enables individuals to seek amendment of records that contain inaccurate personal information.

The FOI Act expressly empowers the Ombudsman to investigate complaints about the actions of Australian Government agencies under the FOI Act (s 57). It also requires agencies to inform applicants of their right to complain to the Ombudsman about FOI matters (s 26).

The Ombudsman's role under the FOI Act reflects the more general role of the office in promoting transparency and accountability in government administration.

Scrutinising government

In March 2006, the Ombudsman released a report titled Scrutinising Government: Administration of the Freedom of Information Act 1982 in Australian Government Agencies, which dealt with the way Australian Government agencies managed their responsibilities under the FOI Act. The report surveyed previous Australian studies of freedom of information laws and noted that there had been no response by government to many of the recommendations in those earlier studies. This included an earlier report by the Commonwealth Ombudsman in 1999, Needs to Know (available at www.ombudsman.gov.au).

The most recent Ombudsman report examined FOI administration by undertaking a case study analysis of how FOI requests were handled in 22 Australian Government agencies. Some major problem areas were identified, including excessive delays in processing FOI requests, a lack of consistency among agencies in acknowledging FOI requests in a timely manner, delay in notifying charges and inconsistencies in their application, and variable quality in the standard of decision letters, particularly regarding the explanation of why documents were exempted from access.

The report also acknowledged that there was a clear commitment to FOI in some agencies, and a high degree of compliance with the spirit and detailed requirements of the FOI Act. Drawing from these examples of good and bad practice, the report set out guidelines for achieving better FOI practice. These include clear procedures on FOI processing, close monitoring of incoming correspondence, quality control of FOI correspondence, and open communication between the agency and FOI applicants.

'The Ombudsman's report dealt with the way agencies managed their responsibilities under the FOI Act.'

Two findings stand out from the recent study: there is an uneven culture of support for FOI among Australian Government agencies; and the vitality and success of the FOI scheme depend heavily on the way the Act is administered within agencies. The report recommended that agency heads indicate a clear commitment to sound FOI practice and the objectives of the FOI Act, having regard to the kinds of good and bad practice identified in the Ombudsman report.

In the course of the report's preparation, a number of agencies wrote to express support for the review and to indicate systemic changes they had made to bring about better FOI management. Following the release of the report, the Secretary of the Department of Defence wrote commending the report and indicated his intention to release a statement, jointly with the Chief of the Defence Force, identifying the consequences of failing to manage FOI and to seek continuing briefings about the department's management of FOI requests. This is a good example to other agencies. We are aware that some other agencies are taking similar action, and one sought our advice in drafting a statement to be issued by the agency head. We will follow up this issue more generally during 2006–07.

The report also recommended (as had some previous reports from the Australian Law Reform Commission, the Administrative Review Council, and the Senate Legal and Constitutional Legislation Committee) the creation of a statutory position of FOI Commissioner. An FOI Commissioner could provide leadership in promoting the ideals of FOI, monitoring compliance with the Act, and promoting its effective operation. As well as providing more effective FOI oversight, such an office could also work with Australian Government agencies in addressing areas of administrative difficulty that sometimes arise in FOI administration. At 30 June 2006, there had been no response to this recommendation.

Top

Complaints overview

In 2005–06, we finalised 259 complaint issues (289 in 2004–05) about the way 44 Australian Government agencies handled requests under the FOI Act.

The majority of complaint issues were about three agencies: Centrelink (25%); the Department of Immigration and Multicultural Affairs (DIMA) (15%); and the Child Support Agency (11%). The remaining 49% were about 41 agencies.

Most complaints related to delays by agencies in processing FOI requests (23%) and to the primary decision reached by agencies (21%). In cases of delay, we contacted the relevant agency about expediting a decision.

In a number of cases, the agency told the FOI applicant that it did not have a specific document that the person believed it should have. The FOI Act provides a right for an agency to refuse a request for a document that does not exist or that cannot be found. These agency decisions are reviewable by the Administrative Appeals Tribunal (AAT). Sometimes it is more expedient if we enquire of an agency whether it has made reasonable attempts to locate the document—for example, whether the agency has checked correspondence logs and asked all staff likely to have dealt with such a matter if they have any recollection of the document.

Other cases raised a familiar issue—the extent of an agency's obligation under the FOI Act to assist applicants to make valid requests (s 15(2)). An associated question is the scope of an agency's obligation to give an applicant an opportunity to consult before refusing a request on the ground of breadth or because the request does not adequately specify a document (s 24(6)).

One complaint to the office concerned a decision by an agency to refuse a request at a point where the applicant considered he was still negotiating its scope. While the agency did not accept our view that it had erred, following our investigation the agency agreed to allow the applicant to pursue the request. In a similar matter, another agency appeared to have construed an applicant's submission about the level of fees as a request for internal review and made a review decision. The general effect of the agency taking that course is that the applicant would then be restricted to an appeal to the AAT, because the applicant would have exhausted his internal review rights.

In a case received towards the end of the year, a government officer complained about the proposed disclosure of sensitive personal information about her to another officer. The agency had provided her with an opportunity to comment before making the initial decision to exempt the document from disclosure under the Act; no similar opportunity was given when a different decision to disclose the document was made on internal review. The agency's decision is now being reviewed by the AAT. We are continuing to consider some of the processing issues that led to the complaint.

Access to policy-related information

During the year, parliamentarians, their staff and journalists contacted the Ombudsman to discuss FOI issues relating to requests for policy and similar information. The Scrutinising Government report observed that the FOI Act works well in facilitating public access to personal information, but not so well in providing access to policy-related information. There appear to be two major concerns—the level of charges assessed and the involvement of ministers and their staff in relation to requests made to agencies.

The FOI (Fees and Charges) Regulations set a scale of charges, which are below the real cost to agencies of handling FOI requests. A decision by an agency to impose a charge can be challenged on internal review or before the AAT. The FOI Act also confers a discretion on agencies to waive a charge, for reasons such as hardship and the public interest. The policy of successive governments has been that FOI applicants should contribute to the costs of their requests. There is no automatic waiver for parliamentarians or journalists. Complaints to the office sometimes focus on that issue, and argue that an agency should have waived a charge because, for example, the document could have been obtained by a parliamentary committee, or the document relates to a current issue of public controversy on which there is a public interest in disclosure.

It is difficult for the Ombudsman's office to take a definitive stance on those issues, when the Act confers a clear (and reviewable) discretion on agencies to impose or waive a charge. If some of these charging decisions were challenged in the AAT, it may result in principles being established that provide better guidance.

Ministers have a proper interest in the management of government agencies within their portfolio and it will often be appropriate for an agency to consult its minister about an FOI request. In the same way, agencies often consult other agencies about possible disclosure. While a minister's views are entitled to great weight, they are not determinative of the public interest unless a conclusive certificate is issued (in relation to a limited class of exemptions). The larger issue for the Ombudsman's office is whether a decision was reasonably available to the decision maker. If so, we will usually suggest that the AAT is a better forum to decide the merits of the FOI decision.

Delays in processing FOI requests by DIMA

In 2004–05, we reported on significant delays in the processing of FOI requests by DIMA and the range of strategies DIMA was implementing to address the situation.

While the Ombudsman was satisfied that the strategies DIMA was putting in place were appropriate to get the processing of FOI requests under control in the longer term, the situation has not improved to the degree we expected over the past year. DIMA has experienced some delays in implementing its strategies, such as recruiting and training additional staff. The processing of many FOI requests far exceeds the statutory timeframe. At 30 June 2006, there were 1,101 FOI requests outside the statutory timeframe that required processing, compared to 907 at 30 June 2005. This continues to be an unsatisfactory outcome.

We are pursuing a number of specific issues with DIMA about its processing of FOI requests and will ask for more frequent reporting on progress in dealing with the backlog of cases. In the meantime, we continue to accept complaints about FOI delays and may investigate individual complaints if we consider that particular matters should be given priority or that the complaint raises a special area of concern in relation to DIMA's handling of requests.