If you missed our last update on the Information Commissioner (IC) FOI Review Procedures – too late, they’re now in force! Jokes aside, the IC’s Review Procedures went live on 1 July 2024. Considering that the starting gun’s been fired, it’s going to be ready, set and go for Commonwealth Freedom of Information (FOI) teams to get on board with the IC’s efforts to streamline and speed-up their FOI Review protocols.
The phrase that something is ‘a marathon, not a sprint’ – that can easily be used to describe all things freedom of information. But in these new directions, you can see some of the ‘sprint’ coming to forefront in the IC’s efforts to ‘up’ the pace in FOI Reviews. Under the old directions, agencies had three weeks to respond to the IC’s opening inquiries into FOI decisions where documents couldn’t be found or don’t exist. For the record, that’s for decisions made under section 24A of the FOI Act. As for the new direction? Five business days – Ouch.
Along with truncating timeframes, the new directions include new penalties for agencies that don’t stick to them. And that includes options to report non-compliance in the OAIC’s Annual Report or to the Office of Legal Services Coordination. BIGGER ouch.
If you were to ask most FOI practitioners, I am fairly confident that they would say that five days is a very short period of time in which to collect, document and provide evidence about the adequacy and effectiveness of their search processes. There are obvious practical difficulties, not the least of which is ensuring that systems are in place to identify where to find relevant documents – and when the IC’s clock is ticking? How will this work when even the most meticulous record-keepers and the most responsive business areas might struggle to cross that finish line?
In fairness, the IC hasn’t left agencies doubled over with cramp in this race. At least that’s how I read it. Along with making agencies run faster and waving a big penalty stick, the IC is also dangling a carrot – the directions state that where a statement of reasons comprehensively sets out why and how a refusal decision has been made under section 24A, the IC can decline a review application under section 54W(a)(i) of the FOI Act. That section gives the IC discretion to refuse applications that are ‘lacking in substance’. This power has always been available to the IC, but it doesn’t warrant a mention in the old directions. Does putting it into the new directions mean the IC will be more open to using that discretion than it has in the past?
In my opinion, I both think and hope so. Why? Because it will enable the IC to improve the way FOI Reviews are run, both at the agency and regulator level. Yes – agencies will always need to keep detailed and comprehensive search records from the get-go. That’s so that they don’t fall afoul of timeframes. But that new-ish requirement is ‘good practice’ and will also help agencies to increase their efficiencies in dealing with FOI matters. A good start would be to ‘build in’ standard practices, like retaining evidence of searches that can be re-used in Statements of Reasons. That applies to section 24A and other decisions. As to other techniques, agencies might think about file noting and retaining records of key words used in searches, systems examined, and the time spent in searching. If agencies document those kinds of details, they can approach an IC FOI Review with clear data points to support their determination. From the IC’s perspective, that also means that the Commissioner already has all the evidence needed to decide not to proceed with a Review. In other words, agencies won’t be faced with preliminary enquiries and a five day race to find documents. That will translate into time and resource savings – and a bit of ‘gas in the tank’ to run some other, more challenging FOI races.
