Review of charges under the Freedom of Information Act 1982 Report to the Attorney-General

Elements of an administrative access scheme

An administrative access scheme must be tailored to the size of an agency, its work, the requests it typically receives for information or documents, and its regular procedures for public contact and access. Australian Government agencies are diverse in nature, function and methods, and this will be reflected in the access procedures they adopt. An agency may, for example, limit an administrative access scheme to only some of its documents (such as personal records), or establish more than one scheme to cater for the different types of records it holds.

It is nevertheless important that members of the public can approach agencies with a conventional understanding of how administrative access will work. The procedures should not differ markedly from one agency to another.

Following is an outline of the main principles on which an agency administrative access scheme should be based. The OAIC will consider providing further guidance on these issues if the FOI Act is amended as proposed in Part 5.

1. 
   The details of an administrative access scheme should be set out on the agency’s website.²⁴¹ A link to the scheme should be clearly displayed on the agency home page.
   
2. 
   The scheme should explain the type of requests that the agency will accept under the scheme, and those falling outside the scheme. For example, the scheme may apply to only some of the agency’s records (such as personal records or client case files) and a scheme could adopt principles from the FOI Act, excluding requests for material that is available for purchase from the agency, and requests that would impose a substantial and unreasonable administrative burden on the agency.
   
3. 
   The procedure a person should follow in making a request for information or documents should be set out, including how a request can be made, where it should be sent, the contact details the person should provide, and the proof of identity that may be required for requests for personal information. To the extent practicable, agencies should commit to accepting informal requests for information or documents.
   
4. 
   Information or documents provided in response to a request under an administrative access scheme should be provided free of charge, except for reasonable copying, reproduction or postage costs.
   
5. 
   The agency should commit to acknowledging requests promptly upon receipt, and providing a response within 30 days.
   
6. 
   The form in which access may be granted should be explained. For example, the most suitable form of access may be an email or telephone call to explain an issue, the preparation of a new document that contains the requested information, or provision of a copy of existing documents.
   
7. 
   The interaction of the scheme with the FOI Act should be set out, as explained in more detail in Part 5. It should be noted that complaints about agency actions under an administrative access scheme do not fall under the FOI Act, but can be taken up directly with the agency or by making a complaint to the Commonwealth Ombudsman.
   

8. 
   An agency may wish to maintain a record of the requests handled under an administrative access scheme, though it may not be appropriate to record the detailed information that agencies provide for the annual report on the FOI Act.²⁴² It is possible that many requests received under an administrative access scheme will blend with the enquiries and requests that agencies currently receive from customers, clients and stakeholders. The OAIC does not propose to collect statistics on the operation of administrative access schemes, so the details agencies record would be for their own administrative purposes.
   
9. 
   Where appropriate, agencies may also choose to publish the information released via their administrative access scheme through their IPS. This would facilitate broader public access to the information rather than exclusive individual access, in line with the requirement that the IPS should include ‘information in documents to which the agency routinely gives access in response to requests’ under the Act (s 8(2)(g)).
   

Issues of potential concern

While there are clear benefits of administrative access schemes for both applicants and agencies, there are some countervailing considerations discussed below.

Concerns for applicants

The recommendation in Part 5 for linking the development of administrative access schemes to the FOI charges framework should not be viewed as a retreat from the FOI reforms in which the $30 application fee for FOI requests was removed.

A person could approach an agency directly and ask for information or documents under an administrative access scheme, and no processing charge would apply. If not satisfied with the agency response the person could then make an FOI application without paying an application fee. The FOI request could be lodged 30 days after the administrative application was made, or earlier if the agency gave a quicker response.

The only practical difference between the current and proposed arrangements is that a person could be delayed by up to 30 days to make an FOI request free of an application charge. The expectation, however, is that many applications would not need to proceed to that second stage and would be dealt with adequately at the administrative stage. In cases that did proceed through both stages it is, again, to be expected that many requests could be dealt with more quickly than at present, because of the preliminary analysis and discussion that should have occurred between the applicant and the agency at the administrative stage.

The present reality is that many FOI requests are not resolved within 30 days. The processing period can be extended by 30 days to allow for consultations with third parties²⁴³ or for other reasons. In the eight months following 1 November 2010, the OAIC received 1096 requests or notifications from agencies for extension of the statutory processing period.²⁴⁴ In many other cases that period was suspended while discussion occurred between an applicant and an agency about the scope of a request and the applicable charges.

Over time, it is also to be expected that the development and operation of administrative access schemes will bring about systemic change by aligning agency processes to the open government objectives of the FOI Act. This would make it easier for individuals to obtain information and documents without the need for a formal FOI request.

Concerns for agencies

An administrative access scheme will be more suited to some agencies and to some types of requests than others. For example, a small agency that deals regularly with a known client base may find that it would be unproductive or confusing to create an administrative access scheme to operate alongside the FOI Act. Only 61 out of close to 240 agencies listed in the 2010–11 FOI Annual Report received more than 10 FOI requests that year.

For that reason, I recommend in Part 5 that it be optional for an agency to establish an administrative scheme that an applicant must use before lodging an FOI request that does not attract an application fee. If an agency chooses not to establish such a scheme, there will be no application fee for FOI requests to the agency.

Another agency concern may be a greater cost burden as requests handled under an administrative scheme will not be charged except for incidentals such as copying and postage. The reality, however, is that agencies presently recoup only a small fraction of costs through FOI charges (less than two per cent in 2010–11²⁴⁵). The total cost to an agency of administering information and document access requests could be expected to decrease, as less administrative time will be spent on the formal requirements of FOI processing, such as estimating and notifying charges and preparing statements of reasons.

Finally, agencies may be concerned about whether there will be adequate legal protection for agency staff who release information under an administrative access scheme. The FOI Act provides protection against civil action (ss 90–91) and criminal prosecution (s 92) for agencies and officers who publish or give access to documents under the Act.

Section 90 provides that no action for defamation, breach of confidence or infringement of copyright lies against the Commonwealth, Norfolk Island, a minister, an agency or an agency officer solely on the ground of having given or authorised access to a document. The main qualification is that the agency or officer must have acted in good faith in the belief that publication or giving access under the Act was required or permitted. Section 92 operates in a similar way to s 90 in providing immunity from criminal prosecution.²⁴⁶ Section 91 deals specifically with the consultation requirements in ss 26A, 26AA, 27 and 27A of the Act, and provides protection where there was a failure to consult, or a document was shown to a person or organisation in the course of consultation.

There is a strong case for ensuring similar protection to the good faith release of information under an administrative access scheme. It may be that ss 90(1)(c) and 92(1)(c) already provide adequate protection, as they apply to publishing or giving access to a document ‘in good faith, in the belief that the publication or access is required or permitted otherwise than under this Act (whether or not under an express legislative power)’. This includes discretionary disclosure outside the FOI Act or disclosure of exempt documents, if made in good faith.²⁴⁷

At any rate, this is not a new challenge for agencies. They commonly release information and documents on an administrative basis without apparent difficulty. On occasions agencies direct a person to reframe a request as an FOI request, so that the formal procedures and protections of the FOI Act will definitely apply. This practice could continue with the development of administrative access schemes as proposed in this report.