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Thursday, October 25, 2012

FOI humming along in the west

The Annual Report 2011-2012 of the Western Australian Information Commissioner (PDF) - 3095kb indicates business on the rise, but no major problems, no areas of great concern.  No hint at all in the report of the need for big picture freedom of information reforms, or open gov or open data developments. Other observations from the west are welcome of course.

Commissioner Bluemmel reports applications for external review (114) were up 9% from the previous year. Of those cleared, 57 (44.5%) were conciliated, 27 (21%) confirmed the agency decision,13 (8.5%) varied the decision, and 2 (1.5%) set aside and substituted the commisioner's decision. 

The office has some useful performance indicators but time taken to finalise reviews is not one of them- it doesn't appear to rate a mention this year other than the fact that two additional staff have helped address a backlog and the commissioner expects further positive effects from next financial year. (Two years ago delay was a big deal.)

The WA PI's are:
Satisfaction of parties with review processes: 81%;
Satisfaction of agencies with advice and guidance provided: (98%)
Extent to which complaints resolved by conciliation: 55% against a target of 60%.
Average cost of reviews finalised: $8395
Average cost of advisory services delivered per recipient: $196

On agency stats:

"The number of access applications made to agencies under the Act has steadily increased, from 3,323 at the end of the first full financial year of operation of the Act (1994/95) to 16,634 in the year under review. That represents an increase of approximately 400% in 17 years from 1995 and 5.8% from last year (15,716). As in recent previous years, the Western Australia Police received the highest number of applications made to a single agency (2,446 - an increase of 3% from last year), with the next highest number received by Royal Perth Hospital (1,969 - an increase of 5.1% from last year), followed by Sir Charles Gairdner Hospital (1,208 - an increase of 8.6% from last year). A further 5,923 applications were received by various other health service providers (hospitals, health services and the Department of Health), representing an increase of 8.24% over last year."
Of the 16,634 applications received by agencies in 2011/12, 633 (just over 3.8%) were received by local government agencies and 16,001 (96.2%) by state government agencies- 89.7% of the state government agency decisions granted access in some form.

WA ministers continue to receive more applications than counterparts elsewhere - 146 in this reporting period. 

The commissioner's gripes include non-compliant agency notices of decision:
"For example agencies frequently cite clause 4(2) but fail to explain why the information in the document has commercial value or why disclosure of the document in question could reasonably be expected to destroy or diminish that commercial value. It is necessary to explain the elements of the exemption and how they apply in a given case. The FOI Act has been in operation for nearly 20 years and, in my opinion, there is no excuse for any government agency to be ignorant of its obligations concerning the legislation.The obligation to provide applicants with notices of decision that contain all of the information prescribed by s.30 is intended to ensure that the true basis of a decision is clearly explained to the applicant. If an agency gives an applicant a notice of decision that does not contain sufficient findings of fact and a clear statement of the basis on which an exemption is claimed, it is unlikely that the applicant will have a clear understanding of the reasons why access is refused and why the requirements of any exemption clause are satisfied. An applicant is entitled to reasons for the agency’s decision. Only if applicants understand all of the elements involved in applying a particular exemption and why access is refused are they in a position to decide whether to accept the decision or to test it by way of external review on complaint to the Information Commissioner.An inadequate notice of decision from an agency invariably increases the time it takes for this office to deal with a matter on external review
And agencies unnecessarily consulting third parties or placing undue reliance on the objections of third parties.

Under sections 32 and 33 of the FOI Act, agencies are required to take reasonable steps to obtain the views of third parties before giving access to a document that contains personal, commercial, business, professional or financial information about that party.However, in cases where an agency does not propose to give access to the relevant information because the agency has formed the view that the information is exempt, consultation with third parties is not required. Unnecessary consultation with third parties in such cases increases the time it takes for an agency to deal with an access application. In addition, consultation in those circumstances often raises unnecessary concerns and is likely to hinder rather than assist in the process of dealing with the application.Where an agency does obtain the views of a third party, this should be done in a targeted and clear manner. The agency should make it clear to that party that the agency has already formed the view that the information should be disclosed and invite the third party to provide persuasive arguments as to why the party considers that the information is exempt under the FOI Act. The consultation process should not be an open ended invitation for the third party to express a general preference about disclosure of the information.If the views of a third party are obtained, those views are not decisive of a matter. An agency should take those views into account but must make its own decision based on the information before it. Agencies should not place undue weight on the objections of a third party, without supporting information. In cases where an agency is not persuaded by the objections of a third party, agencies should make a decision to give access. Of course, the agency should then defer giving effect to this decision to allow the third party to exercise its rights of review under the FOI Act as outlined in section 34 of the Act.Agencies should note that a considerable amount of time can be saved when dealing with an FOI application if they consult with an applicant at the commencement of the FOI process as to whether he or she requires third party information or whether that information can be excluded from the scope of the application by agreement.

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