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Friday, May 31, 2013

Delays at OAIC amount to failure to deliver administrative justice

At Senate Estimates this week Australian Information Commissioner Professor John McMillan confirmed the sorry reality that faces those who seek review of decisions on Freedom of Information applications: the commitment to transparency and accountability is nothing more than rhetoric when resource constraints mean timely external review is simply not available.

Professor McMillan explained privacy complaints, FOI complaints and Information Commissioner reviews have been increasing by at least 10 per cent a year. When the proposals for FOI reform and the creation of the office were going through the parliament it was projected that the office would have 100 staff. Staff numbers are currently around 64 and will probably stabilise in the next financial year at around 70.

It takes roughly seven months to just designate someone in the office to undertake an FOI review and a lesser but still substantial period to allocate FOI and privacy complaints. Once allocated, time to completion varies but the longest unresolved cases are now over two years old.

While the backlog is reasonably steady at the moment, there are just over 400 Information Commissioner reviews that are unresolved.

This is not what was promised or expected. 

Dr Hawke's review report must be tabled within 15 sitting days of 31 April and is awaited with interest.

The Hansard extract  follows:

Senator RHIANNON: I apologise if there has been confusion about that. I do have a question of the Office of the Australian Information Commissioner. Has any additional funding been provided to the office in response to the continuing budget shortfall?

Prof. McMillan : The answer is no. The departmental appropriations for 2013-14 is, as you indicated, roughly $10.6 million. It includes a deduction for the efficiency dividend applied to all agencies.

Senator RHIANNON: Could you specify how this impacts on the work of the OAIC.

Prof. McMillan : We publish quarterly statistics on the web now that indicate the work being received by the office and also our completion rates. We have been very public about this. The statistics on the web indicate that we are encountering significant workflow issues. The work coming into the office—for example, privacy complaints, FOI complaints and Information Commissioner reviews—has been increasing by at least 10 per cent a year and though we have made a determined effort over the last nine months to reduce the backlogs there are still significant workflow backlogs. In particular, it takes roughly seven months to allocate a new Information Commissioner review application to an officer and a lesser period, but still a substantial period, to allocate FOI and privacy complaints. We have also written to government expressing concern that we have additional work to implement the substantial privacy reforms that commence on 12 March next year. We have written, drawing attention to the extra workload that that is imposing.

In summary, we are proceeding as best, as gamely and in as focused a way as we can. We are achieving results, but we are not able to complete all the work in the time frames that we would like.

Senator RHIANNON: Is the backlog becoming bigger and is it taking longer to get the work done?

Prof. McMillan : In terms of total numbers the backlog is reasonably steady at the moment. For example, we have on hand just over 400 Information Commissioner reviews that are unresolved. As a result of a determined effort we made towards the end of last year and allocating staff specifically to complaint handling Information Commissioner reviews we managed to increase the completion rate of individual staff officers quite considerably. If you look at the web you will see there is a substantial outflow of work, but there is still a large backlog that is not reducing in number, even though we are roughly completing the same work that is coming into the office, but we are not able to reduce the existing backlog.

Senator RHIANNON: Did I hear you correctly, that you said it takes on average about seven months to—

Prof. McMillan : To allocate. If we receive an application for Information Commissioner review it can take roughly seven months to allocate that to an officer for work. We do an initial review of the application, for example, to see whether it is in jurisdiction and to do initial acknowledgement letters, but to do substantive work on a review will take at least seven months.

Senator RHIANNON: Once it is allocated how long on average does it then take to complete it?

Prof. McMillan : It varies. It depends very much on the individual case, but the longest unresolved cases in office are now over two years old—that is, we have some applications for Information Commissioner review lodged over two years ago. All these statistics are on the web.

Senator RHIANNON: What would be your ideal practice? What do you think would be good practice?

Prof. McMillan : In the budget papers there are projected completion rates. The objective is to complete 80 per cent of Information Commissioner reviews within 12 months of receipt and, equally, to complete 80 per cent of privacy and FOI complaints within 12 months of receipt. We are not currently meeting that objective, but that is what we will be focused on in the forthcoming year.

Senator RHIANNON: How many additional staff would you need to achieve that objective?

Prof. McMillan : We have not calculated an exact figure. We have obviously had discussions around budget. The Privacy Commissioner wrote to the Attorney-General drawing attention to the workload pressures imposed by the privacy reforms, but we have been well aware of government announcements and government measures, including the efficiency dividend, so we have not done scenario modelling. When the proposals for FOI reform and the creation of the office were going through the parliament it was projected that the office would have 100 staff under the departmental appropriation. That is a figure we have been comfortable to accept as a projected number. The numbers go up and down, but they will probably stabilise. They are currently down, under departmental appropriation, to around 64; it will probably stabilise in the next financial year at around 70.

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