In May 2024, the Office of the Australian Information Commissioner (OAIC) released new Information Commissioner (IC) Review Procedure Directions aimed at Commonwealth Government agencies. The IC Direction will require agencies to more actively engage with FOI applicants – and prove that they undertook searches for documents. Taking effect in July 2024, the new IC Directions are part of the OAIC’s commitment to ‘delivering a timely IC review process, informed by the principles of informality, responsiveness and proportionality’. The two key changes will bring about the following changes:
- Mandatory engagement – Commonwealth agencies will be required to engage with FOI Review applicants at the outset of the review process to resolve issues prior to OAIC involvement, or to narrow the grounds for review. The ‘Onus to engage’ requirement seeks to resolve issues leading to an OAIC Review application before it even lands on the Information Commissioner’s plate – or at least make it a more chewable mouthful when it gets there. It’s easy to see how this change could help to solve systemic issues in FOI system, key among which is the backlog problem. If issues are dealt with at the agency level, it means less work is pushed up to the OAIC.
- Evidence regarding deemed refusals – Agencies will be required to produce information regarding deemed refusals and decisions that documents cannot be found or don’t exist. The second ‘evidentiary’ change aims to streamline the procedure whereby the OAIC obtain information and verified Commonwealth agencies’ efforts to locate records that are the subject of an FOI request. Stated simply, the OAIC is seeking simple ways to validate access refusal decisions on the grounds of ‘no documents found.’
For this article, we’ll only be looking at the first ‘big change.’ With the mandatory engagement requirement, I think it’s fair to say that the OAIC is not trying to ‘handball’ some of its workload to Commonwealth agencies. A better description is that the OAIC’s Directions will (hopefully) assist agencies in preventing a future pileup of review applications at their doors. The Direction also recognises that agencies are struggling with resourcing (and image problems) when it comes to FOI. More broadly, this is a whole-of-Commonwealth problem that cannot be alleviated by all agencies doing just a little more to de-clutter the IC review system, or at least assist in delivering timely IC reviews.
On a practical level, it’s already common practice for many agencies to negotiate with applicants about the scope of FOI requests, either informally before a request is acknowledged or through the consultation process in the FOI Act. By the time an applicant has received an Internal Review decision, they could have gone through up to three rounds of head-to-heads with an agency and might now have to face another round to try and get what the agency has decided they can’t have. Ask any FOI Officer how many times they have dealt with applicants who are ‘royally ticked off’ about being refused access to documents. Those same applicants will likely see an additional round of consultation as daunting, frustrating, a delay tactic – and a host of other more colourful descriptors.
Prior to enacting the IC Direction, the OAIC consulted with agencies – and many Commonwealth entities flagged their concerns about their staff members’ mental and psychosocial wellbeing if they were forced to (further) consult with applicants. Some emphasised that many such applicants would feel aggrieved by the agency’s (seeming) lack of action before and after having submitted their FOI request. With the mandated consultation process coming into effect, agencies are going to need to work out how to balance their new obligation to engage with applicants and their obligation to care for their staff. And that’s not to mention the extra resourcing requirements.
So, on balance, is the extra work required of agencies ‘evened out’ by the savings the OAIC expects? Hopefully. But hope – as they say, is not a strategy. So, let’s examine ways through which Commonwealth agencies and FOI applicants can help each other by narrowing the scope of the reviewable issues. This could include requiring applicants to:
- Identify the parts of the FOI decision they want reviewed,
- State why they disagree with the agency’s or Minister’s decision,
- Specifying reasons as to why an exemption may have been incorrectly applied, and
- If the FOI request has been refused on the ground that it would substantially or unreasonably divert an agency’s resources, provide reasons to the contrary.
Is it asking too much of applicants to engage in the above points? In my opinion, I don’t think so. Why? Quick fact – the number of published IC Review decisions where an applicant has failed to provide any submissions is extraordinarily high. What does that factoid mean? The OAIC is required to spend its time and resources (effectively) playing two roles, i.e. FOI applicant and arbiter. Stated another way, the OAIC has to develop its own reasons, based upon assumptions about the FOI applicant’s likely objections to an agency’s exemption arguments. In other words, applicants need to have a stake in the process. If they don’t, that places too much of a burden on both agencies and the OAIC.
It may require some work on the part of agencies to educate applicants about the process, but it will mean that those same agencies can focus their submissions on specific issues, rather than a grocery-list of ancillary or uncontested exemptions. That would cut down on unnecessary processing time and resourcing. It would also assist the OAIC directly in cutting down the matters they have to address in Review decisions.
At Synergy Law, we’re passionate about making a difference – and in practical ways that can help government agencies and the broader community work together in efficient and effective ways. And we’re always happy to discuss issues and challenges faced by our clients, to be a ‘brains trust’ or help put a critical lens to legal and operational challenges.
