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Tuesday, January 04, 2011

Looking for high notes in low key FOI annual report

Markus Mannheim in the Canberra Times seems to have been the only media mainstreamer to pick up on the release of the 2009-2010 Annual Report on the operation of the Commonwealth Freedom of Information Act, signed off by the Minister Brendan O'Connor on 31 October but released with the usual impeccable timing in Christmas week.

In a break with the past the Minister (who doesn't have a separate web presence in his Privacy and Freedom of Information capacity) doesn't appear to have bothered with a media release to accompany the report. His introduction to the report itself is very upbeat about the legislative changes that commenced on 1 November.

Wikimedia Commons- Korall
Mannheim notes the report shows the number of applications are down and costs are up. The report also confirms that citizen interest in use of the FOI act to see what government is up to is very low with applications for non-personal documents way down on the previous year (for reasons unstated and unknown). The fact that overall 93% of requests for documents are granted in full or in part tends to hide the reality that only 37% of applications for documents other than those containing the applicant's personal information were granted in full, with another 46% granted in part. And challenging decisions that don't seem to make sense is worthwhile: the applicant who seeks internal or external review of a decision to refuse access succeeds in many instances in having the decision varied, calling into question the quality of original decisions.

Use of the act
87% of applications received, and 17141 of the 19583 applications determined were personal information requests. Obviously in many instances individuals use the act to seek access to information concerning their dealings with a government agency, an important aspect of government accountability. Centrelink, the Department of Immigration and Citizenship and the Department of Veterans’ Affairs received 77% of all requests, mostly in this category. Overall the number of applications is down primarily because Centrelink decided to provide access to the individual's personal information through administrative means in the usual case, a streamlining of process others should follow.

The real test of an FOI regime is its value in facilitating transparency to hold government to account in the broader sense.  On this front, the use of the act for access to "other documents" (policy and government decision making) was again low: 2764 applications of the total, half the 5528 received the previous year (Appendix O page 120). "Why is it so" as the good professor used to say? Are government agencies being more open so FOI occupies a smaller space? Are potential applicants browned off by prior experience, or has apathy taken a further turn? Or some other explanation?

As 'increasing public participation in Government processes" is part of the new objects of the act we have a long way to go on this front. (Separately Terry Moran Secretary of PM&C in a recent speech emphasised the need for a culture change within government agencies to put citizens first, and mentioned plans for a Citizen's Survey to "capture citizens’ views on government services, programs and laws." Let's hope questions about interest in government, and access to government information get a run.)
The headline response rate is 92.5% of requests determined resulted in full or part access to the documents sought (Minister's Introduction). Table 3 shows that the percentage of all determined requests “granted in full” decreased from 71% in 2008–09 to 63.78% in 2009–10. The percentage of requests “granted in part” increased from 22.91% to 28.7%. The percentage of requests refused increased from 6.09% to 7.52%.

Of the 17141 applications for personal information documents, 11592 (67%) were granted in full, 4490 (26%) granted in part, and 1059 (6%) refused all together.  Of the 2442 applications for "other documents" determined, 898 (37%) were granted in full,1130 (46%) in part , 414 (17%) refused  and 619 withdrawn (Table 3). No explanation of the last of these- some of course may have baulked at the cost.

Response times
Overall applications determined within 30 days were down from 83% the previous year to 79%; those that took 61 to 90 days doubled from 2% to 4.5%; and those over 90 days from 1.8% to 2.6% (Table 7). The figures for other documents were distinctly worse: 1078 of 2442 (44%) took 30 days or less; 248 (10%) took 61-90 days and 183 (7%) over 90 days (Appendix C). The stand out (for the wrong reason) was the Australian Competition and Consumer Commission-27 of 48 applications (56%) took longer than 90 days.(Over 90 days is a broad category-what's the longest outstanding application in each agency might be of interest.)

Fees and charges
$211,612 was collected in application fees for all initial applications and internal review applications. Agencies notified a total of $3,177,732 in charges, but exercising their discretion under section 29 of the FOI Act, collected only $305,178 (10%) of those charges. The total amount of fees and charges collected represents 1.9% of the total cost of the FOI Act.
(Application fees have been abolished from 1 November. and changes made to the charging regime with all applicants entitled to five hours free decision making time. It would be fascinating to know the cost for all agencies of recording chargeable time, processing requests for waiver and the administrative steps in dealing with payments, and these costs in comparison to the returns.)

Cost of administration
Solicitors Fees for the year were $3,812,249 (about the same as last year) but legal counsel fees dropped from $811,052 to $480,182.

The amount paid for applicants' litigation costs: zero, the same as last year (Table 20)-an illustration that getting a payment is "eye of the needle" stuff for applicants even if they succeed in the Administrative Appeals Tribunal.

Agencies spent $188,735 on staff training during the year, a fairly modest amount in the circumstances, and presumably mostly with the Australian Government Solicitors'.

Review of decisions 
The statistics show that it often pays to seek review of a determination to refuse access. Of 367 decisions on internal review 157 (42.8%) affirmed the original decision; 57 (15.5%) were granted in full and 153 (41.7%) resulted in some concession by agencies. 110 applications for review were lodged with the Administrative Appeals Tribunal. It's difficult to know what to make of the applications Dismissed by Consent (five) or Withdrawn (51)-was the applicant satisfied nonetheless?- in Table 15, but five agency decisions were set aside, three varied by consent, and three set aside and 28 varied by decision of the tribunal.

Here's my comment on last year's report.

From I November 2010 reporting obligations rest with the Australian Information Commissioner. There is plenty of room for improvement in agency reporting beyond the raw statistics. For starters, whether each has a plan to promote open government, and performance information regarding the achievement of the government's stated objectives; indicators of agency culture and change over time; initiatives taken to publish information of general interest to the community; the extent to which agencies are providing access to information informally; and who-politicians, journalists, NGOs, lawyers and individuals-are using the act.

1 comment:

  1. Anonymous11:58 am

    Thanks for the update.