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Thursday, December 08, 2011

Commonwealth FOI statistics reveal busy first year

The 2010-2011 Annual Report on agencies and the operation of the Commonwealth Freedom of Information released last Friday covers the four months leading up to the commencement of changes to the law in November and the period to 30 June.

The Australian Information Commissioner, Professor John McMillan and Freedom of Information Commissioner Dr James Popple report progress.
"(W)e have seen a marked shift in agencies’ attitudes towards releasing government information, under FOI and through proactive disclosure" Dr Popple said.
Applications overall were up 9.3%- personal information requests by 3.6% and "other" requests by 48.4%. Off a very low base as noted by Dr Popple:
“The numbers of requests in the last two years have been the lowest in more than 20 years, largely due to proactive steps that some agencies have taken to release information outside of the FOI regime.”
Hopefully that's the reason as increased participation in government is one of the objects of the act.

Other details from the report include:

90.6% of all access requests (19504 of the total of 23,605- 82.6%- were for personal information) were granted in full or in part, a decrease of 1.9%. From the report:
"In the last three reporting years there has been a decline in the number of requests granted in full: from 71.0% in 2008–09, to 63.8% in 2009–10, to 60.9% in 2010–11. This pattern applies to requests both for personal and for other information. As agencies release more information outside the FOI process – personal information through other processes, and general information through the Information Publication Scheme – it is likely that a higher proportion of FOI requests will be for other (non-personal) information. Processing FOI requests for this other information is generally more complex, and more likely to result in access being refused or granted only in part. If this is the case, the decline in the proportion of requests granted in full can be expected to rise."
Appendices A and B provide more detail concerning applications for "other" (policy and government decision making) documents. 792 applications were on hand at 1 July 2010; 3980 applications out of the total of 23319 were received during the year; 2656 were determined, 839 granting access in full (31% down from 37% last year), 1127 in part (42% down from 46%), and 690 refused (25% up from 17%); 787 were withdrawn (compared to 619 last year)- as I speculated then, some may have baulked at the cost; and 1325 were on hand at 1 July 2011. (The percentage comparisons are mine drawn from last year's report.)
Use of the act
The Department of Immigration and Citizenship, the Department of Veterans’ Affairs, Centrelink, the Australian Taxation Office and the Department of Human Services remain firmly entrenched at the top of the list in terms of total applications. But some managed significant reductions:
"Centrelink received 3,780 requests in 2010–11: 743 (16.4%) fewer than in the previous year, and 6,495 (63.2%) fewer than in the year before that. This decline in request numbers can be at least partly attributed to Centrelink’s continuing policy commitment to providing customers access to their own personal information outside the processes of the FOI Act, where appropriate."
The following departments reported large increases in the number of requests for "other" documents compared to the previous year:
• Attorney-General’s Department (346% increase)
• Department of the Treasury (179% increase)
• Department of Foreign Affairs (178% increase)
• Australian Customs and Border Protection Service (160% increase)
• Australian Federal Police (148% increase)
• Australian Securities and Investments Commission (116% increase)
• Department of the Prime Minister and Cabinet (100% increase)

Response times
"Most requests (84.2%) were processed within the applicable statutory time period. The response time was significantly better when dealing with requests for personal information than when dealing with other requests."
The stand out (for the wrong reason) on time taken was the Department of Human Services-173 of 425 applications took longer than 90 days. Foreign Affairs and Trade struggled with time as well with 12 of 81 determinations taking this long.

"Over 90 days" is a broad category- further breakdowns of time and the longest time taken would be of interest.

Fees and charges
"Agencies notified a total of $3,207,827 in charges, but exercising their discretion under s 29 of the FOI Act, collected only $536,318 (16.7%) of those charges. Charges were notified in respect of 1,456 requests and the total amount of fees and charges collected was $608,554, an increase of 17.8% on the previous year total of $516,790.This increase of 17.8% in fees and charges collected contrasts with the increase of 9.3% in FOI requests over the same period. Presumably this reflects an increased complexity in requests for non-personal information which, as discussed above, were a greater proportion of all requests in 2010–11 than in 2009–10."
Charges are still an issue regarding use of the act.

Application fees were abolished from 1 November, and changes made to the charging regime. As mentioned previously and relevant to the review of charges currently underway, it would be fascinating to know the cost of all the work involved in charging- recording chargeable time, providing an estimate of charges,  seeking advance deposits, processing requests for waiver, following up requests for payment and all the administrative steps in dealing with money. And how these costs compare with the returns. This aspect of costs isn't detailed in the report but..

Cost of administration
Agencies estimate FOI costs at $36,318,030 during the year. Agency efficiency in processing is an open question.

The average cost per request determined across all agencies was $1799 up from $1403 last year. But Appendix J includes some interesting departures from the norm. The Office of the Official Secretary to the Governor-General - $29812 per request averaged across two applications; the National Offshore Petroleum Safety Authority $19864 for 11; Department of the Environment, Water, Heritage and the Arts $15557 for 24; Treasurer $13173 for 4;  Department of Broadband, Communications and the Digital Economy $12467 for 68; and
Wheat Exports Australia $12515 for one application.

Solicitors Fees for the year were $4,493,897 (up from $3,812,249 last year) and legal counsel fees were fairly steady at $497,759 ( $480,182). On the subject of legal costs Markus Mannheim in the Canberra Times reports:
The Commonwealth's information watchdog has warned public servants against hiring lawyers to try to keep documents secret. The Government's latest annual freedom-of-information report shows agencies spent $5million on FoI-related legal fees in 2010-11. The fees represented about $1 in every $7 agencies spent administering the FoI Act. Information Commissioner Professor John McMillan said yesterday the expenses concerned him, particularly after the Government's decision last week to cut departments' operating budgets by 4 per cent a year. He understood why bureaucrats sought external advice - ''they're dealing with very complex issues like legal professional privilege, the waiver of fees, and some have an overload of [FoI] requests'' - but said agencies needed to contain their legal bills. ''In terms of priorities, I think spending your open-government budget on legal fees does not sit well with open-government objectives.'' In some cases, agencies paid more for advice on whether to waive FoI fees than the fees were worth.
For the third year in a row the amount paid for applicants' litigation costs came in at zero, -an illustration of the difficulty in getting a payment for costs even where an applicant succeeds in the Administrative Appeals Tribunal.

Review of decisions 
The statistics show that it often pays to seek review of a determination to refuse access.
In 2010–11, agencies made 367 decisions on internal review — the same number as in 2009–10. Of these, 170 (46.3%, an increase of 8.3% on the previous year) affirmed the original decision, 54 (14.7%) were granted in full and 143 (39.0%) resulted in some concession by agencies to applicants. Nine applications for internal review were withdrawn.
In the period 1 November 2010 to 30 June 2011, the Information Commissioner received 176 applications for IC Review raising over 250 review issues. Immigration and Citizenship, Australian Securities and Investment Commission, Centrelink, Australian Taxation Office and Australian Federal Police led the list of agencies involved. Twenty-nine of the applications were finalised by 30 June 2011. Four of these were concluded through a published decision of the Freedom of Information Commissioner, affirming the agency decision in two cases and setting aside the agency decision and making a substituted decision in the other two. Eighteen IC review requests were identified as invalid-usually because thet related to applications that pre-dated 1 November.

82 applications for review were lodged with the Administrative Appeals Tribunal, the lowest number since 1992-93, no doubt because of the free and mandatory requirement (from 1 November) to go to the Information Commissioner first. Overall AAT applicants didn't do too badly: 25 agency decisions were set aside by consent or AAT decision, three varied, 20 affirmed and 10 dismissed. As to the story behind  Dismissed by Consent (four) or Withdrawn (37) we don't know whether the applicant was satisfied with the result nonetheless.

Next year?
Last year I commented on room for improvement in agency reporting beyond the raw statistics. I'd say the same this year:
"For starters, whether each (agency) 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."

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