CHAPTER 7Looking at the agencies

The purpose of the Freedom of Information Act 1982 (FOI Act) is to extend, as far as possible, the 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 empowers the Ombudsman to investigate complaints about actions of Australian Government agencies under the FOI Act (s 57). The Act 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.

In 2006–07 we finalised 303 complaint issues (259 in 2005–06) about the way 46 Australian Government agencies handled requests under the FOI Act. The majority of complaint issues were about Centrelink (33%) and DIAC (12%).

Most complaint issues related to delays in processing FOI requests (26%) and to the correctness of the primary decision (27%). In most cases, delay in processing FOI requests is resolved by encouraging agencies to expedite a decision in cases already outside the statutory timeframe. Often the delays are not extensive—though there was a delay of nearly 12 months in responding to a request in one case investigated during the year, and (as noted earlier in this chapter) there have been extensive FOI delays and backlog in DIAC.

Complaints to the Ombudsman about delay can often be avoided if agencies better inform applicants of the progress of their application and the causes for the delay. The Ombudsman continues to encourage agencies to improve the level of contact with applicants to decrease the need for our intervention.

The FOI (Fees and Charges) Regulations set a scale of charges, which are significantly below the real cost to agencies of handling FOI requests. Depending on the nature of an FOI request, the estimated charge can still be high. This occurred in one case investigated during the year, when a request of a relatively straightforward nature attracted a charge that seemed very high. The explanation was that a large number of third parties needed to be consulted in relation to the release of the information, and the Regulations permitted that time to be included as a charge.

A decision to impose a charge can be challenged on internal review or before the Administrative Appeals Tribunal. The FOI Act also gives a discretion 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, journalists or social security recipients. An agency must consider hardship and the public interest in considering requests for waiver.

Complaints to the office sometimes focus on that issue, arguing that an agency should have waived a charge—for example, where the person believes that the document could have been obtained by a parliamentary committee, or it relates to a current issue of public controversy and 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, reviewable discretion on agencies to impose or waive a charge. The office will generally not recommend waiver if an agency has followed a proper process, considered the relevant factors and made a decision within a reasonable range.

The FOI complaints handled during the year underscore the important role that efficient administration of the FOI Act plays in meeting open government objectives.

Many of these issues were raised in the own motion report Scrutinising Government: Administration of the Freedom of Information Act 1982 in Australian Government agencies (Report No 2/2006). A proposal in that report was that a statutory office of FOI Commissioner (possibly located within the office of the Commonwealth Ombudsman) could play a constructive role in addressing complaints about the operation of the FOI Act and promoting its effective operation. An FOI Commissioner could provide valuable assistance both to agencies and to the public. The proposal for an FOI Commissioner has also been supported by other bodies and commentators, who see the FOI Act as a cornerstone of Australian democracy.