A federal government agency reviewed Freedom Of Information decisions by other federal government bodies and found close to half were wrong. So why does the federal government want to remove its FOI review powers?
The federal government agency that reviews freedom of information (FOI) decisions has said close to half the decisions under formal review were incorrect.
That review body - the Office of the Australian Information Commissioner (OAIC) - will lose its FOI merits review powers if the federal government's bill passes the Senate.
The OAIC was earmarked for closure 18 months ago but it was given a funding boost in the mid-financial year budget update. The funding boost is to help catch welfare cheats, the budget update reveals, and plans to take away the OAIC's FOI merits review powers are still before parliament.
When an FOI application for documents is refused, the applicant may apply for an internal review within the same department or an external review with the OAIC.
Since the OAIC was established in 2010, it has completed 352 formal Information Commissioner (IC) reviews of decisions - often to deny Australians access to information or to charge them large FOI processing fees.
Of the 352 decisions, 141 (40 per cent) of the OAIC's decisions were to 'set aside' and change FOI decision outcomes completely, an analysis of available data to December 2015 has shown.
A further 38 (11 per cent) review decisions were to 'vary', where the OAIC mostly agreed with the FOI decisions made by government agencies, but disagreed with the reasoning.
Twenty-five formal reviews were made in 2011-12, but 253 reviews were completed by the OAIC. Those included 22 decisions referred to the AAT, 110 resolved by consent or withdrawn, and the remaining 96 were finalised through other means.
In 2014, the Australian government passed legislation in the lower house to abolish the OAIC and pass its FOI merit review powers to the Administrative Appeals Tribunal (AAT).
The AAT conducted FOI merit review decisions prior to the OAIC being established. The AAT currently has the power to review OAIC decisions, making FOI reviews a two-tiered system.
The bill to remove the OAIC's powers of merits review is still before the Senate, but the AGD told SBS the OAIC would be funded for the rest of 2015-16.
What effect would the changes have on applicants?
While the AAT would have the same powers to review FOI decisions if the OAIC lost its FOI merit review powers, the cost of making an external FOI review application would increase dramatically. An IC review with the OAIC is free, whereas the same review with the AAT costs up to $861. If the case is resolved in the applicant's favour, the AAT will repay most of the fee.
A Productivity Commission report in 2014 noted the average cost of proceedings with the AAT (not just FOI reviews) between 2004 and 2013 ranged from $2000 without hearings, to $16,600 with hearings.
In 2014, former OAIC Freedom of Information Commissioner James Popple wrote in the Australian Institute of Administrative Law’s ‘AIAL Forum’: “There is no doubt that the introduction of free external merits review of FOI decisions was a significant contributor to the dramatic increase in applications for merits review after the 2010 reforms.
"The introduction of an application fee for IC reviews (not necessarily one as high as that for the AAT) would have made the OAIC’s workload more manageable, while being only a small barrier to access to review."
Monash University Lecturer Johan Lidberg, who contributed to the Right To Information index which ranked Australia 50th, said Australia's ranking would probably drop if the OAIC was abolished. He said Australians should not have to pay for access to information.
“This information is held and created using tax payers’ money,” Dr Lidberg told SBS. “They shouldn’t have to pay twice.”
The Review of the Freedom of Information Act 1982 and Australian Information Commissioner Act 2010 (2013 FOI Review) said establishing the OAIC was an improvement for open governance. The report said applying for an IC review with the OAIC should cost $400.
An OAIC review
The IC recently reviewed a request for documents from the Department of Immigration and Border Protection (DIBP).
The applicant originally used an FOI request to ask for documents detailing the DIBP's organisation structure, including contact details of people in the department.
In August 2014, the DIBP said it would need to consult with 'several hundred employees' before it could release the details.
Then in November 21, the DIBP said it was not required to process parts of the application.
The applicant applied for a merits review with the OAIC and in November 2015, the Acting Australian Information Commissioner, Timothy Pilgrim, ruled that the DIBP's reasons were not valid. "The Department must continue to process all seventeen parts of the request," he said.
Australian lawyer and FOI advocate Peter Timmins said if the OAIC was removed, government departments would be able to deny access to documents for invalid reasons.
"I'd expect removing the OAIC from the equation would give renewed strength looking for straws to grasp rather than acting in the spirit and intent of the act," Mr Timmins said.
The Open Government Partnership
Australia has signalled it intends to join the Open Government Partnership (OGP), an agreement between governments to deliver more open and accessible governance to citizens.
The former Labor government said Australia would join the OGP in 2013.
After the Coalition won the federal election in 2013, there was no action on signing the OGP until November 2015 when the government committed to drafting an action plan.
The OGP’s international agreement lists principles that countries must agree to in order to join, including: “We commit to providing access to effective remedies when information or the corresponding records are improperly withheld, including through effective oversight of the recourse process.”
Mr Timmins said removing the OAIC's FOI merits review powers would be inconsistent with joining the OGP.
"The inclusion of an information commissioner position as part of the access to information framework to advocate, oversight, investigate complaints and undertake reviews has been on the rise around the world," he said.
SBS asked the Department of Prime Minister and Cabinet for comment, and in a joint response with the Attorney General's Department said the government was considering input from the public regarding the OGP.
"The Government will consider input received during the public consultation process," both departments said.
The Prime Minister’s Office said the public consultation process on the action plan draft will conclude in May 2016.