Chapter 6
Looking at the agencies
This is likely to be the last full year for the current arrangements for investigating complaints under the Freedom of Information Act 1982 (FOI Act). The Government has circulated a draft Bill for a reformed FOI Act drafted to commence from 1 January 2010. In parallel, the Government has circulated a draft Bill that proposes to create a new statutory agency, the Office of the Information Commissioner, which would be responsible for oversight of information access and related matters in the Commonwealth. The Office of the Information Commissioner will be headed by the Information Commissioner (a new office holder) and supported by the Privacy Commissioner (an existing office holder) and the Freedom of Information Commissioner (a new office holder). The Ombudsman would retain jurisdiction to deal with FOI and privacy matters, but would ordinarily transfer any such complaint to the Office of the Information Commissioner.
In 2008–09 we received 204 approaches and complaints about FOI matters. Of these, 29% were about Centrelink, 11% about the Department of Immigration and Citizenship and 10% about the Child Support Agency. We finalised 221 approaches and complaints about FOI, of which we investigated 51%. As with most previous years, the main complaint issues were delay, the imposition and remission of fees and charges, and decisions not being explained well.
There were also more complex issues, including some arising from the FOI Act requirement that an agency assist a person who wishes to make an FOI request. Our experience is that compliance with this requirement could sometimes be better, especially where agencies simply fail to act on attempted requests that are technically invalid. Delay, confusion and resentment can arise where a person does not know what is required, and the agency does not tell them. The usual reason for invalidity is that a person has not paid, or requested remission of, the application fee. This problem would be relieved by the proposed FOI reforms, which remove the requirement for an application fee.
Some agencies continue to read requests literally, as if they were carefully drafted contract clauses or legislative provisions. This can lead to routine requests for uncontentious information being read so narrowly that they cover no documents likely to be of interest to the applicant, or so many documents that the agency says that it cannot manage the request or that the applicant must pay substantial charges.
Many agencies have schemes, either administrative or legislative, to enable a person to obtain documents about the handling of their matter without requiring an FOI request and at no charge or a minimal charge. The interaction of these schemes and the FOI Act can be problematic, with FOI requests being read as requests for some other kind of access. We have taken the view that someone who wants to make an FOI request (and thereby have access to formal time limits, review rights and a statement of reasons) should not be prevented from doing so. However, if an agency can provide all or most of what an applicant wants in a simpler, quicker and cheaper way, it should do so after consulting the applicant.
During the investigation of one complaint, we identified an anomaly in the current legislation. If a person is seeking access to documents and makes a complaint to the Ombudsman, they are precluded from applying to the Administrative Appeals Tribunal (AAT) until the Ombudsman has finished dealing with the matter. The time limit for appeal to the AAT is extended correspondingly. However, if a person complains that they have been consulted about the release of documents that refer to them and are resisting access, the time limit for appeal to the AAT is not extended. We suggested that this be addressed in the reformed FOI legislation.
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