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

Defining administrative access

Administrative access can be as informal as a person calling or emailing an agency and receiving a response via telephone or email. Many requests to agencies for information or documents are handled by customer client contact centres or public affairs or liaison units. More structured arrangements can be specified in internal agency policies and involve, for example, recording requests, or charging for copying and postage of department publications or documents. Some agencies operate online portals that allow agency clients to log in and access or update information held about them.

The structure and procedures for administrative access are less important than the outcome. The key issue is whether a person is satisfied with the information provided, in whatever form it is provided. If so, the accountability and transparency objectives that underpin a person’s individual right to request access to government information have been met. If a person is not satisfied with an agency response under an administrative access scheme, they have enforceable legal rights under the FOI Act. The following diagram (Figure 4) illustrates how greater use of administrative access schemes could shift the balance in handling information access requests.

Figure 4: Impact of administrative access schemes on FOI access requests

Benefits of administrative access

The move to open government

Administrative access is a natural manifestation of open government. As a more informal means of accessing government information, administrative access reflects the cultural change in government towards increased openness, and greater ease and informality in interactions between individuals and agencies. It also enhances the capability of agencies to comply with the objects of the FOI Act by providing access promptly and at the lowest reasonable cost (s 3(4)).

In recent years, numerous reviews and reforms have supported enhanced transparency in government and unlocking public sector information. In particular, the Government’s 2010 Declaration of Open Government stated its commitment ‘to open government based on a culture of engagement, built on better access to and use of government held information, and sustained by the innovative use of technology’.²³⁵ Administrative access to government information provides an essential channel for fast and informal information release and advances fundamental principles of open government.

Informality and engagement with the public

The public information culture in government has changed substantially since the FOI Act commenced in 1982. It is now a more routine practice that people request information (rather than documents) from agencies and that agencies provide information and documents without a formal FOI access request. This partly stems from the greater emphasis in government on providing better service delivery to agency clients²³⁶ as well as increased emphasis given to open government.

The FOI Act should reflect this shift. The legal obligation on agencies to respond to a formal request for documents is still the key principle on which the FOI Act is based, but it should not be seen as the primary means of ensuring public access to government information.

Information technology

An allied change is that the information people seek from government agencies is often stored electronically, and is not necessarily captured in discrete documents. In 1982, most information was stored in paper documents. The FOI Act was accordingly built around a person’s right to request access to a particular document that contained the information they sought.

Government agencies now store most information electronically and respond to information requests in more flexible ways. Responses are often provided by collating data from various sources and providing it in a new document, frequently by email. The FOI Act should reflect that in many instances a person is essentially seeking information and the form of access is a secondary consideration. The right to ask for a particular document should not be the primary means of ensuring public access to information. At the least, the FOI scheme should allow discussion to occur between applicants and agencies before requests become formal and the processing period starts to run.

Administrative access as a ‘lead-in’ to FOI

The FOI Act requires an applicant to ‘provide such information concerning the [requested] document as is reasonably necessary’ to allow it to be identified (s 15(2)(b)). This can be difficult for an applicant who does not have first-hand knowledge of the documents that an agency holds. An agency can decline to accept a request as valid if it is not sufficiently precise. If, on the other hand, the applicant makes a request that is expressed too broadly, the agency estimate of charges may appear prohibitive.

The period for processing a request can be suspended if an agency advises the applicant that processing the request would involve a substantial and unreasonable diversion of the agency’s resources. The processing period will also be suspended if an agency and an applicant do not agree on the charge payable. In practice this means that it can take far longer than the statutory processing period before an agency decides whether access to documents will be granted.

An administrative access scheme that operated as a lead-in to a formal FOI request could establish a productive discussion between applicants and agencies and help to clarify issues before the FOI statutory timeframes commence. The result could be that an FOI request that is made following an unsuccessful administrative access request is more clearly or narrowly framed and can be processed more quickly and inexpensively.

Less formal processes

Another important cultural change in law and government since 1982 is that greater emphasis is now given to resolving disputes by consultation and negotiation rather than by formal legal processes. Claims, complaints, disputes and differences of view should first be addressed directly and informally between the parties before formal legal procedures commence.

An example is that it is normally expected that a person raise an issue first with an agency before taking it to an external oversight body. Internal review is often required before external review by a tribunal can commence.²³⁷ The civil litigation dispute resolution reforms in 2011 also require a party who institutes civil proceedings in a federal court to file a statement outlining the genuine steps taken by the party to resolve a dispute before commencing proceedings.²³⁸

The FOI Act could reflect this change by encouraging the use of administrative access opportunities prior to the exercise of the legal rights under the FOI Act. An emphasis on using less formal processes could result in quicker outcomes and better dialogue between agencies and applicants.

Cost benefits of administrative access

An administrative access scheme could also offer cost benefits both to applicants and agencies. For applicants, information or documents provided under an administrative access scheme would normally be provided free of charge, except (in some instances) copying or other electronic production charges. An applicant who proceeds to make an FOI request is likely to be better informed and able to make a request that is clearly framed.

For agencies, there can be greater efficiency in dealing upfront and in a flexible manner with public requests for information and documents. An agency will have less need to assess and collect charges, provide formal statements of reasons under s 26, or deal with complex editing and third party consultation issues in deciding how information can be disclosed. Disclosure of information and documents can be handled more commonly by the customer liaison or public affairs sections of the agency, rather than by the specialist FOI unit which can focus more on complex FOI issues.

For example, DIAC significantly reduced the number of FOI requests it received by handling a greater proportion of requests for personal information outside the FOI process.²³⁹ This change meant that routine requests for personal information could be handled by the appropriate business area of the agency while the FOI team was able to markedly improve FOI processing timeframes as the number of requests received returned to a more manageable quantity.²⁴⁰