Hawke was required to report on those statutes by April this year and to consider -
a) the impact of reforms to freedom of information laws in 2009 and 2010, including the new structures and processes for review of decisions and investigations of complaints under the FOI Act, on the effectiveness of the FOI system;
b) the effectiveness of the Office of the Australian Information Commissioner;
c) the effectiveness of the new two-tier system of merits review of decisions to refuse access to documents and related matters;
d) the reformulation of the exemptions in the FOI Act, including the application of the new public interest test, taking into account: (i) the requirement to ensure the legitimate protection of sensitive government documents including Cabinet documents; and (ii) the necessity for the government to continue to obtain frank and fearless advice from agencies and from third parties who deal with government;
e) the appropriateness of the range of agencies covered, either in part or in whole, by the FOI Act;
f) the role of fees and charges on FOI, taking into account the recommendations of the Information Commissioner’s review of the current charging regime; and
g) the desirability of minimising the regulatory and administrative burden, including costs, on government agencies.In summary, Hawke comments that
The Review finds that the reforms have been operating as intended and have been generally well-received.
Many concerns in submissions raised issues not directly addressed by the 2009 and 2010 reform packages.
Administration of FOI represents a significant cost and resource commitment for the Australian Government and its agencies. A key challenge for agencies, and for the OAIC, is to adopt and maintain practices to process FOI requests effectively and efficiently within their resources.
Legislative and administrative changes to streamline FOI procedures, reduce complexity and increase capacity to manage FOI workload both by agencies and the OAIC are recommended. The Review also recommends changes and adjustments to the operation of the exemptions, fees and charges, and coverage of specific agencies. In making these recommendations, the Review focussed on ensuring that the right of access to government information remains as comprehensive as possible.
There are exemptions for certain classes of documents and agencies. The Review believes that these are warranted despite their limiting effect on the release of government information. The most used exemption is the personal privacy exemption, being applied in 58% of cases where exemptions were used, or in 17.3% of FOI requests.
The deliberative processes exemption was applied in 1.5% of requests and the Cabinet documents exemption in 0.5% of requests. This suggests that the use of these two exemptions, contrary to some views, is at a very low level.His recommendations are -
R 1(a) – Further Comprehensive Review – a comprehensive review of the FOI Act be undertaken.
R 1(b) – Further Comprehensive Review – that review might also consider interaction of the FOI Act with the Archives Act 1983, Privacy Act 1988 and other related legislation.
Office of the Australian Information Commissioner (OAIC)
R 2 – Online Status of FOI Reviews and Complaints – the OAIC consider establishing an online system which enables agencies and applicants involved in a specific FOI review or FOI complaint investigation to monitor progress of the review or complaint.
Effectiveness of the New Two-Tier System of Review
R 3 – Delegation of Functions and Powers – section 25 of the Australian Information Commissioner Act 2010 be amended to allow for the delegation of functions and powers in relation to review of decisions imposing charges under section 29 of the FOI Act.
R 4 – Power to Remit Matters to Decision-maker for Further Consideration The Review recommends the FOI Act be amended to provide an express power for the Information Commissioner to remit a matter for further consideration by the original decision maker.
R 5 – Resolution of Applications by Agreement – the FOI Act be amended to make it clear that an agreed outcome finalises an Information Commissioner review and in these circumstances a written decision of the Information Commissioner is not required.
R 6 – Third Party Review Rights – the Act be amended to provide that only the applicant and the respondent are automatically a party to an Information Commissioner review. Any other affected person would be able to apply to be made a party to the review.
R 7 – Extensions of Time – the Act be amended to: remove the requirement to notify the OAIC of extensions of time by agreement; and restrict the OAIC’s role in approving extensions of time to situations where an FOI applicant has sought an Information Commissioner review or made a complaint about delay in processing a request.
R 8 – Agreement to Extension of Time Beyond 30 Days – section 15AA of the Act be amended to provide an agency or minister can extend the period of time beyond an additional 30 working days with the agreement of the applicant.
R 9(a) – Extension of Time for Consultation on Cabinet-related Material – the Act be amended to allow an agency to extend the period of time for notifying a decision on an FOI request by up to 30 working days where consultation with the Department of the Prime Minister and Cabinet on any Cabinet-related material is required.
R 9(b) – Extension of Time for Consultation on Cabinet-related Material – the Cabinet Handbook should be revised to accord with this recommendation.
R 10 – Two-Tier External Review – the two-tier external review model be re-examined as part of the comprehensive review of the FOI Act.
Reformulation of the FOI Act Exemptions
R 11 – Law Enforcement and Public Safety – the exemption for documents affecting the enforcement of law and protection of public safety in section 37 of the Act be revised to include the conduct of surveillance, intelligence gathering and monitoring activities. This revision should also cover the use of FOI as an alternative to discovery in legal proceedings or investigations by regulatory agencies.
R 12 – Cabinet Documents – the exemption for Cabinet documents be clarified by including definitions of ‘consideration’ and ‘draft of a document’.
R 13 – Ministerial Briefings – the Act be amended to include a conditional exemption for incoming government and incoming minister briefs, question time briefings and estimates hearings briefings.
R 14 – Information as to Existence of Documents – section 25 of the FOI Act be amended to cover the Cabinet exemption.
Consideration of Specific Agencies Covered by the FOI Act
R 15 – Parliamentary Departments – the Act be amended to make the Department of the Senate, the Department of the House of Representatives and the Department of Parliamentary Services subject to the Act only in relation to documents of an administrative nature. The Act should also be amended to provide an exclusion for the Parliamentary Librarian.
R 16 – Exclusion of Australian Crime Commission from the FOI Act – the Australian Crime Commission be excluded from the operation of the Act. Section 7(2A) of the Act should be amended to refer to an ‘intelligence agency document’ of the Australian Crime Commission.
R 17(a) – Review of Agencies Listed in Part I of Schedule 2 to the FOI Act – he intelligence agencies remain in Part I of Schedule 2 to the FOI Act. The parts of the Department of Defence listed in Division 2 of Part I of Schedule 2 should also remain.
R 17(b) – Review of Agencies Listed in Part I of Schedule 2 to the FOI Act – All other agencies currently in Part I of Schedule 2 should justify their exclusion from the FOI Act to the satisfaction of the Attorney-General. If they do not do this within 12 months, they should be removed.
R 17(c) – Review of Agencies Listed in Part I of Schedule 2 to the FOI Act – the Attorney-General should also consider whether there is a need to include any other agencies in Schedule 2.
R 18 – Criteria for Assessment of Agencies Exempt in Respect of Particular Documents – the Act contain criteria for assessment of agencies which are exempt from the FOI Act in respect of particular documents.
R 19(a) – Review of Agencies Listed in Part II of Schedule 2 to the FOI Act – Section 47 of the Act be amended to make clear that it applies to documents that contain information about the competitive or commercial activities of agencies.
R 19(b) – Review of Agencies Listed in Part II of Schedule 2 to the FOI Act – All agencies in Part II of Schedule 2 to the Act should justify their exclusion from the FOI Act to the satisfaction of the Attorney General. If they do not do so, they should be removed from Part II of Schedule 2.
R 19(c) – Review of Agencies Listed in Part II of Schedule 2 to the FOI Act – The Attorney-General should also consider whether there is a need to include any other agencies in Part II of Schedule 2.
R 20(a) – Review of Agencies Listed in Schedule 1 to the FOI Act – Schedule 1 to the FOI Act be amended to repeal the bodies listed, as they no longer exist.
R 20(b) – Review of Agencies Listed in Schedule 1 to the FOI Act – the Attorney-General should also consider whether there is a need to include any tribunals, authorities or bodies in Schedule 1.
Fees and Charges
R 21(a) – Administrative Access Schemes – the OAIC consider the development of appropriate guidance and assistance to encourage agencies to develop administrative access schemes.
R 21(b) – Administrative Access Schemes – While the Review acknowledges the desirability of encouraging the use of administrative access schemes, it does not believe it appropriate for this to be done by reintroduction of application fees for FOI requests.
R 22(a) – FOI Processing Charges – a flat rate processing charge should apply to all processing activities, including search, retrieval, decision-making, redaction and electronic processing. No charge should be payable for the first five hours of processing time. Processing time that exceeds five hours but is ten hours or less should be charged at $50 per hour. The charge for each hour of processing time after the first ten hours should be $30 per hour.
R 22(b) – FOI Processing Charges – current provisions for no processing charges for access to an applicant’s personal information and for waiver of charges should continue to apply.
R 23(a) – FOI Access Charges – a flat rate access charge should apply to all access supervision activities of $30 per hour and that no other access charges should apply. 23(b) The current provisions for no charges for access to an applicant’s personal information and for waiver of charges should continue to apply.
R 24 – Ceiling on Processing Time for FOI requests – introduction of a 40 hour processing time ceiling for FOI requests.
R 25 – Reduction and Waiver of FOI Charges – an agency should be able to waive or reduce charges in full, by 50% or not at all. However, it considers that it would be better for these options to be set out in guidelines rather than in the FOI Act itself and recommends the OAIC consider amending its guidelines accordingly.
R25(b) – Reduction and Waiver of FOI Charges – the current requirement to consider whether access to a document would be in the general public interest or in the interest of a substantial section of the public should remain unchanged.
26(a) – Reduction Beyond Statutory Timeframe – adoption of a sliding scale for reduction of charges where decisions are not notified within statutory timeframes in accordance with recommendation 6 of the FOI Charges Review.
R 26(b) – Reduction Beyond Statutory Timeframe – No charge should be payable if the delay is longer than 30 working days.
R 27(a) – Application Fees for Information Commissioner Review for Review of Access to Non-personal Information – an application fee of $400 apply for a review of an FOI decision for access to non-personal information. This fee would be reduced to $100 in cases of financial hardship.
R 27(b) – Application Fees for Information Commissioner Review of Access to Non-personal Information – if proceedings terminate in a matter favourable to the applicant, a $300 refund would apply. There would be no refund of the reduced fee.
R 27(c) – Application Fees for Information Commissioner Review of Access to Non-personal Information – No fee would apply for an Information Commissioner review of an access grant decision by an affected third party.
R 27(d) – Application Fees for Information Commissioner Review of Access to Non-personal Information – In all other cases, fees would be payable for Information Commissioner review of decisions for access to non-personal information.
R 27(e) – Application Fees for Information Commissioner Review of Access to Non-personal Information – no remission of the fee where an applicant has first sought internal review or where internal review is not available.
R 28 – Indexation of Fees and Charges – all fees and charges are adjusted every two years in accordance with the CPI based on the federal courts/AAT provision for biennial fee increases.
R 29(a) – Timeframes for Applicants to Respond to Agency Decisions – an applicant should be required to respond within 30 working days after receiving a notice under section 29(8), advising of a decision to reject wholly or partly the applicant’s contention that a charge should not be reduced or not imposed. The applicant’s response should agree to pay the charge, seek internal review of the agency’s decision or withdraw the FOI request.
R 29(b) – Timeframes for Applicants to Respond to Agency Decisions – If an applicant fails to respond within 30 working days (or such further period allowed by an agency) the FOI request should be deemed to be withdrawn.
Minimising Regulatory Burden on Agencies
R 30 – Practical Refusal Mechanism – s 24AA(1)(b) of the Act be repealed to make it clear that the practical refusal mechanism can only be used after an applicant has provided information to identify the documents sought.
R 31(a) – Time Periods in the FOI Act to be Specified in Working Days – where appropriate, the Act be amended so that time periods are specified in terms of ‘working days’ rather than calendar days.
R 31(b) – Time Periods in the FOI Act to be Specified in Working Days – The timeframe for processing an FOI request (not taking into account any extensions of time) should be 30 working days. Provision should be made to exclude any period in which an agency is closed such as during the ‘shut-down’ period between Christmas and New Year.
R 32 – Repeat or Vexatious Requests – the Act be amended to permit agencies to decline to handle a repeat or vexatious request or requests that are an abuse of process, without impacting on the applicant’s ability to make other requests or remake the request that was not accepted. The applicant can appeal against such a decision to the OAIC.
R 33(a) – Anonymous Requests – the Act be amended so that an FOI request cannot be made anonymously or under a pseudonym.
R 33(b) – Anonymous requests – It should be necessary for an applicant to provide an address in Australia.
R 34 – Inspector-General of Intelligence and Security – the FOI Act and the Archives Act 1983 be amended to clarify procedural aspects concerning the Inspector-General of Intelligence and Security giving evidence in FOI and archive matters before the AAT and FOI matters before the Information Commissioner.
R 35 – Amendment of Personal Records and the Archives Act – the FOI Act be amended to enable a personal record to be amended when the amendment is authorised under the Archives Act 1983.
R 36 – Single Website for all Disclosure Logs – the disclosure log for each agency and minister should be accessible from a single website hosted by either the OAIC or data.gov.au to enhance ease of access.
R 37 – Minimum Timeframe for Publication of Disclosure Log – there should be a period of five working days before documents released to an applicant are published on the disclosure log. However, it considers that it would be better for this to be set out in guidelines rather than in the Act itself and recommends the OAIC consider amending its guidelines accordingly.
R 38 – Copyright – the Government consider issues concerning the interaction of the Act and the potential impact that publication of third party material under the FOI Act may have on a copyright owner’s revenue or market.
R 39 – Suspension of FOI Processing During Litigation – the Act be amended so that the processing of an FOI request is suspended where the applicant has commenced litigation or there is a specific ongoing law enforcement investigation in progress.
R 40 – Backup Tapes – the Act be amended so that a search of a backup system is not required, unless the agency or minister searching for the document considers it appropriate to do so.