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Monday, October 15, 2012

The stats tell the story - the OAIC annual report

The Office of Australian Information Commissioner Annual Report 2011-2012 covers the first full year of operation of the office and incorporates this year information collected from ministers and agencies concerning management of the freedom of information function. In previous years the latter was the subject of a separate dedicated report. It is not as detailed in this new arrangement, but still enough for most of us I expect. (Update: the detailed statistics are published online.)

In addition to the facts and figures, the report shows the commissioner's reasonably upbeat as you might expect.  Australian Information Commissioner Professor McMillan notes access to information issues now have greater prominence in government:
There is a marked increase in FOI requests for policy-related material, an upswing in applicants challenging access refusals through the OAIC’s independent complaint and review processes, and more media reporting based on documents obtained by FOI requests.
Freedom of Information Commissioner Dr Popple believes that the reforms have been successful, mostly:
Most agencies and ministers have demonstrated an understanding of their obligations under the Act to facilitate and promote public access to information, promptly and at the lowest reasonable cost. Many parts of government have embraced the Act’s objective: promoting Australia’s representative democracy by increasing public participation in government processes and increasing scrutiny, discussion, comment and review of government actions. However, some agencies have made decisions, or dealt with FOI applicants, in ways that
are at odds with the pro-disclosure culture that the FOI Act promotes and requires...Agencies do not always take reasonable steps to assist applicants to make their FOI requests, as agencies are required by the Act to do.
Dr Popple identifies a number of technical deficiencies in the FOI Act, in provisions dealing with (for example) charges, third party consultation, extensions of time and IC review of practical refusal decisions that will be raised for consideration in the statutory review of the act to be conducted in 2012–13.

Privacy Commissioner Pilgrim admits to being faced with a challenge:
Privacy issues featured prominently in public debate during the year just passed. Unfortunately, much of this resulted from incidents in which peoples’ personal information was compromised, often on a large scale.
The following items of interest (well, you know what I mean, for those really into this) are drawn from the report, together with my comment here and there. (Sean Parnell's shorter summary here.)

As Professor McMillan reports  "there is a growing workload across most activities that is not accompanied by any staff increase." Apart from other demands
In 2011–12 there was a 3% increase in telephone enquiries to the office, a 47% increase in written enquiries, and an 11% increase in privacy complaints. In the new freedom of information (FOI) roles the office receives on a monthly average 11 complaints and 38 applications for Information Commissioner review (IC review)
FOI review applications
The office received 456 applications for review that raised 909 review issues: 432 applications (or 94.7% of all applications) sought review of access refusal decisions (including decisions on charges or amendment of personal records); 24 applications were from affected third parties concerning access grant decisions.

Two hundred and fifty-three applications were finalised. Twenty-five were concluded through published decisions by the Information Commissioner, the FOI Commissioner or the Privacy Commissioner. All reviews were conducted on the papers rather than through formal hearings. Agency decisions were affirmed in 17 of those published decisions (68.0%), and set aside in eight.

While the OAIC encourages resolution by agreement between the parties, and many applications for review were withdrawn as a result of agreement, only two reviews were formally resolved in this way.(More stats on this are promised next year.)

One of the OAIC’s deliverables is to finalise 80% of review applications within six months of receipt, but only 32.8% were finalised within this time frame. (I've previously described the OAIC KPI's as unambitious and, even if the target was achieved, sure to result in a degree of dissatisfaction. More so when the target is way out of range.)

With regard to the backlog:
on 30 June 2012, the OAIC had 357 IC reviews on hand: 56% of the total number of IC reviews received since November 2010. During the reporting period, the OAIC took a number of steps to improve its efficiency in dealing appropriately with IC reviews. These steps produced some measurable improvements. At the end of April 2012, the OAIC was finalising, on average, 0.56 IC reviews a day; by the end of June 2012 the finalisation rate had risen to 1.77.
FOI Complaints
In addition to review applications the OAIC received 126 FOI complaints, and finalised 100-Human Services and Immigration topped the list.

Another deliverable is to finalise 80% of complaints within 12 months of receipt- 88.1% were finalised within this time limit. ( Congrats, but ditto the comment above concerning 12 months).The most frequently raised issue was processing delay (in 65 complaints or 51.6% of all complaints received).

Extensions of time
The OAIC finalised 2237 notifications and extension of time requests (there has to be a better way.) - 25 were not granted and 58 were granted but varied. 

Vexatious applicant declarations
The office received four applications seeking to have a person declared a vexatious applicant. None were finalised by the end of the reporting period.

Charges review
The report released in February "is currently under consideration by the Attorney-General."

Privacy complaints
The office received 1357 complaints, an increase of 11% over the 1222 received in 2010–11. Veda Advantage Information Services and Solutions Ltd (102) Department of Human Services (64) and Telstra Corporation Limited (55) headed the list. In addition, the OAIC dealt with 37 own motion investigations, 46 voluntary data breach notifications (down  18%), undertook three audits and completed high profile OMIs involving Telstra, Sony Computer Entertainment Australia Pty Ltd, First State Super and Professional Services Review.

Agency FOI statistics
Requests up but low by historical standards
Between 1 December 1982 (the date the FOI Act commenced) and 30 June 2012, Australian Government agencies and ministers received 931,403 FOI requests. In 2011-12, 24764 requests were received, an increase of  4.9% over the previous year. (And around the same number as 1998-99, way short of the 42000 received in 2003-04, and less than the number received in 22 of the 30 years since 1982.)

19,988 (or 80.7%) were for documents containing "personal information." (My guess is that this long utilised description probably doesn't reflect the fact that many such requests are for agency documents concerning decisions or other aspects of an individual's dealings with an agency, a bit more than purely "personal information".) This has moved down in recent years- attributed to a degree to "system and process improvements in some larger agencies that has led to the release of personal information outside of the FOI Act."

Immigration and Citizenship, Veterans’ Affairs, Human Services and the Australian Taxation Office continued to receive the majority of FOI requests (72.7%).

The 4.9% increase hides large increases in some agencies that in previous years received relatively few: Comcare a 235.1% increase on its 2010–11 figures (37 to 124 requests), Prime Minister and Cabinet, a 132.4% increase (71 to 1657), and the Commonwealth Ombudsman a 124.7% increase (81 to 182).

Particularly for non-personal information
There was a 16.4% increase in the number of FOI requests to around 5000 for other (non-personal) information in 2011–12.  As the report notes this is a significant increase in workload given that such requests typically require more agency resources to process than a request for personal information. (But I'd add it's still no great shakes and exactly what the government said and the legislation now includes as an object-encouraging participation, treating government information as a national resource, increasing scrutiny, discussion, comment and review of the Government's activities- as set out in the reforms of 2010. Public awareness and take up doesn't suggest FOI is close to the beating heart of democracy.)

The increase this year is much less than the 48.4% increase in 2010–11. Over the two years, the combined increase in the number of FOI requests for non-personal information was 72.8%.
The 16.4% increase in the number of FOI requests for non-personal information in 2011–12 predominantly occurred in agencies that do not receive many requests. Across the top 20 agencies, the increase was only 2.8%; across the remaining agencies and ministers’ offices it was 48.0%. For example, Comcare’s non-personal requests increased by 381.8% (11 to 53 requests), DFAT’s by 170.3% (37 to 100), and PMC’s by 150.0% (66 to 165). Increases in the number of FOI requests for non-personal information were also experienced by the Australian Federal Police (AFP) (35.1%), DoHA (32.7%), the Trade Marks Office (19.9%) and AGD (15.8%).
Perhaps as a result and as in each of the last four reporting years, there has been a decrease in the proportion of requests granted in full: 71.0% were granted in full in 2008–09, 63.8% in 2009–10, 60.9% in 2010–11, and 59.1% in 2011–12. This decrease applies to requests for both personal and for other information. In each of the last four reporting years there has also been a decrease in the proportion of requests granted in full or in part: 93.9% were granted in full or in part in 2008–09; 92.5% in 2009–10; 90.6% in 2010–11; and 88.4% in 2011–12.

There were significant differences in the outcome of FOI requests between those agencies processing the largest number of requests in 2011–12. Six of the top 20 agencies refused more than 35% of the FOI requests they received during 2011–12: AGD refused 62.3%, Comcare 56.7%, ASIC 50.9%, Treasury 48.7%, PMC 45.0% and DoHA 36.9%.

Charges totalling $1,537,871 were notified for 1423 of the 24,764 applications. Only
$421,298 was collected. (I'd love to see the cost of administration for this.) 

Internal review
496 requests were made for agency internal review of FOI decisions, 18.4% more than in 2010–11. Of these, 223 (45.0%) were for review of decisions on requests for personal information and 273 were for review of decisions on other requests. Agencies made 423 decisions on internal review-204 (48.4%) affirmed the original decision, 48 (11.3%) set aside the original decision and granted access in full, 128 granted access in part. Agencies reduced the charges levied as a result of internal review in 21 cases.

AAT still dealing with pre-reform cases
The AAT continues to receive and to decide applications that arise from FOI requests made prior to 1 November 2010 and that cannot be the subject of IC review. Only one published decision of the AAT during the reporting year was a review of an IC review decision.

The number of FOI decisions appealed to the AAT dropped from 82 in 2010–11 to 20 in 2011–12: a 75.6% reduction, as a result of the mandatory requirement in most cases to seek OAIC review first. Twenty-three (56.6%) of the applications to the AAT resulted in decisions being made by the Tribunal. The Tribunal affirmed the agency’s decision in 11 reviews (47.8% of all applications decided).

Cost of administration

The total reported cost attributable to the FOI Act in 2011–12 was $41.719 million including staff costs of $33.8 million. (Bear in mind this is based on agency estimates of time spent. Efficiency issues including records management systems, the investment in and use of appropriate technology, best practice processing, and the cost arising from excessive caution and a preoccupation with overly cautious legal approaches to decision making cry out for some scrutiny. As to the comparative combined spend on public affairs and media management, I'd like to see that.)

There appears to be something wrong with Table 9.18 on page 140 which totals non-labour costs at $7.8 million. However the items listed include (gasp) General legal advice, $5.3 million, Litigation costs $1.2 million, General legal costs $6.5 million. These alone amount to $13 million-some are doing well in this game-with about $1.3 million for other costs, but  the $6.5 million would seem to be a sub-total of the other two items not a separate item. 

Nothing was paid for applicant's legal costs again this year, illustrating how hard it is to get something even where an applicant wins in the AAT.

The averaged agency cost per request was $1876, up from $1799.

Agencies with average cost per request greater than $10,000 included Export Finance and Insurance Corporation (1 request) $94,212, Office of the Australian Building and Construction Commissioner (2) $79,862, Fisheries Research and Development Corporation (1) $54,144, National Offshore Petroleum Safety Authority (9) $29,710, Future Fund Management Agency (4) $22,089 Department of Industry, Innovation, Science, Research and Tertiary Education (83) $16,135, Department of Broadband, Communications and the Digital Economy (43) $15,960, Geoscience Australia (2) $15,650 and Tax Practitioners Board (13) $14,573.

The total reported cost attributable to compliance with the Information Publishing Scheme in 2011–12 was $3.798 million.

All agencies covered by the FOI act are usefully listed in Appendix 4 of the report.

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