Federal Government FOI Annual Report a curate's egg

The Annual Report on Federal Freedom of Information Act for the year ending 30 June 2009 was released by Minister Ludwig on 22 December, with the Minister's Media Release, not surprisingly, emphasising the positive, opening as follows:

Australian Government agencies are taking less time to make decisions on requests for information under the Freedom of Information Act.

This was a reference to the good news that processing applications within 30 days was up from 67% to 83% (although the story wasn't nearly as good where processing non-personal requests was concerned.)

Some other salient facts didn't escape the media, or at least those that reported on the subject, including that the number of applications were down by 5% on the previous year, the lowest number since 1989-1990. And the percentage of refusals was up.Here are some points from my reading of the Report.

No analysis

The report continues a long tradition of largely sticking to the stats. Little explanation or comment is offered on what they indicate-good and not so good- about the implementation of the Act, although observations in the Ombudsman's Annual Report are repeated. Presumably Minister Ludwig gets something more along these lines from the public servants who  spent months putting all this together. Providing the rest of us with more detailed commentary would assist public discussion and debate.

Use of the FOI Act

80% of requests were to three agencies- Centrelink, Immigration and Veteran's Affairs, overwhelmingly for personal information about the applicant. While overall applications were down, some agencies experienced big increases - Taxation 1000 to 1347; Human Services 322 to 469; Education Employment and Workplace Relations 86 to 215; Australian Competion and Consumer Commission 82 to 140; Australian Transaction Reports and Analysis Center 0 to 50. Of the 117 agencies reporting, 57% received 10 or less requests. 11% received more than 100. Centrelink with over 10,000, received close to twice as many applications as the next two agencies.

As with every year since commencement most applications (around 80%) were for documents concerning the applicant, which in the usual case and not surprisingly were granted in full. Requests to amend records had a big year, doubling to 5032, almost all the increase in Immigration because of "procedural interpretation of changes to citizenship legislation," whatever that means.

The real test of FOI -access to non-personal documents.

However access to "other" documents- those concerning policy development and government decision making- presents a less rosy picture.

First, only 4660 applications of this kind were received (the detailed tables list the number as 5528). Although it is a small increase in the number of requests of this kind compared to the previous year it's hardly a resounding positive comment on legislation aimed at increasing public participation in government affairs.The FOI Act is now in its 28th year. When was the the last government survey about public awareness of rights of access, or the last initiative to improve public understanding of how to go about seeking information? All matters soon to be in the hands of the proposed information commissioner, I expect.

Second, 12.9per cent (603) of requests were rejected completely and 42.8per cent (1997) were rejected in part. Figures for the previous year were 8.56per cent (447) and 53.1per cent (2771), so quite a significant drift to non-disclosure, and the Rudd Government figures are up on at least some of the Howard Government years. Not a good look for a government that made such an issue of how things were going to be different in this area.

Third, in terms of processing time, 2741 of the 4660  applications for "other" documents (under 60%) were dealt with within the 30 day time limit; 482 (10%) took 61 days or longer (admittedly an improvement on last year.)

Fourth,of the 388 requests for internal review, half (191) involved review of decisons on "other" documents. In only 88 cases was the original decision affirmed, indicating that agencies shift at least a little when faced with a persistent applicant and when given the opportunity to take another look. It suggests that  boxing on often pays off for an applicant who doesn't get what was requested, but also clear room for agencies to save time and resources by trying harder to get the decision right first time around.

External review

The number of applications seeking review by the Administrative Appeals Tribunal (139) is generally in line with recent years, but the stats in this area are a bit of a mess. Significant numbers of agency decisions were set aside by consent, and 10 of 39 that proceeded to decision were either set aside or varied (page 17) but we don't know what to make of the large number of applications withdrawn, and whether this was on terms that satisfied the appellant.

Fees and charges

Charges are seen by users to be a signicant impediment to use of the Act for access to non-personal documents.While over $1.7 million in charges were notified, for one reason or another, only $262,000 (15%) was collected. The cost of administration associated with charges (tracking and recording time spent, notifying estimates, asking for advance deposits, considering requests for remission, chasing people for payment) is not mentioned in the Report, but in the light of the small return, make something of a case for abolishing charges in all or most circumstances. The Government's proposals for change (submissions close on Monday) don't go anywhere near this radical idea. Total fees and charges collected represent 1.4% of the cost of the $30 million involved in administering the Act across government agencies.

Efficiency

Average staff-days per request vary from 0.07 to 35.9 and the overall average cost per application was $1208, up from $940 last year and $730 the previous year. There is no comment in the Report about efficiency standards or areas or targets for improvement through use of technology and in other ways, but an area the information commissioner should take a look at.

Legal and other costs

Those applicants who challenged FOI determinations (self-represented in the AAT in the main) will be interested in the fact that agencies spent $3,916,919 on solicitor's fees ( down 8.8% from $4,294,667 the previous year, but close to double $2,052,805 reported in 2005-2006) and $811,052 for Legal Counsel fees (up 31% from $619,192).

Not a cent was incurred for Applicant's litigation costs ($672 the previous year) which require an extremely rare recommendation from the AAT (or order from a court) after satisfying complex criteria, and are subject in any event to the exercise of a discretion to pay by the Minister.

For the first time details of the cost of training for public servants in the administration of the Act were collected and disclosed: given the potential numbers, a rather modest $187,296.

On with the changes in 2010.