Attachment A

Notice on completion under s 86 of the FOI Act (CP17/00532; CP17/00734

and CP18/00323) – Justin Warren, Ashlynne McGhee and Paul Farrell and
Services Australia

Between 20 March 2017 and 18 January 2018, the Office of the Australian Information
Commissioner (OAIC) received three complaints 1 under s 70 of the FOI Act about the
Department of Human Services 2 (the Department) in its performance of its functions and
exercise of its powers under the Freedom of Information Act 1982 (Cth) (the FOI Act).

The FOI complainants in these complaints are:

• Mr Justin Warren
• Ms Ashlynn McGhee, and
• Mr Paul Farrell

The FOI complaints each raise numerous allegations relating to the Department’s processes
for handling requests for access to documents made under the FOI Act. Many of the
allegations overlap between the complaints and each of the complainants allege that their
right to access information under the FOI Act is being delayed by the Department’s approach
to processing their FOI requests. As a result, the three complaints have been investigated by
the OAIC concurrently.

Due to the issues raised by the complaints, these investigations focused on nine broad issues
which related to the actions taken by the Department in the performance of its functions or
the exercise of its powers under the FOI Act.

1
CP17/00532 (Mr Justin Warren), CP17/00734 (Ms Ashlynne McGhee) and CP18/00323 (Mr Paul Farrell).
2
At the time these investigations commenced the responsible department was the Department of Human
Services. On 29 May 2019, the Administrative Arrangements Order established Services Australia. We
note that the Department refers to itself as the Department of Human Services. In this notice Services
Australia will continue to be referred to as the ‘Department’.

1300 363 992 T +61 2 9284 9749 GPO Box 5218 www.oaic.gov.au
[email protected] F +61 2 9284 9666 Sydney NSW 2001 ABN 85 249 230 937
The actions (issues) investigated are grouped as:
• Issue 1: Interpretation of scope
• Issue 2: Approach to processing FOI request relating to the OCI System3
• Issue 3: Compliance with s 24AB of the FOI Act
• Issue 4: Combining FOI requests under s 24(2) of the FOI Act
• Issue 5: Imposition of charges
• Issue 6: Payment of charges
• Issue 7: Disclosure log
• Issue 8: Transfer of requests to the Minister’s office
• Issue 9: Delays in the provision of documents

Investigation process
Upon commencement of the investigations, the allegations raised in each complaint were
provided to the Department for comment. The OAIC also requested information which went
to the Department’s practices and procedures for processing FOI requests.

The investigations focused on the chronology of the processing of each FOI request which
formed case studies in the investigations, as well as a review of the Department’s guidance
material submitted during these investigations.

On 12 October 2018, a set of preliminary observations were provided to the Department

which set out an extensive background to each allegation and described the particulars of
each case study. I consider these preliminary observations provide a description and
summary of the circumstances surrounding the processing of the complainants’ FOI
requests and as such, these conclusions should be read in conjunction with those
preliminary observations (Attachment C).

Pursuant to s 86, upon completion of an investigation I am required to issue a notice on

completion which sets out:

• the investigation results

• the investigation recommendations (if any) and
• the reasons for the investigation results and the making of the investigation
recommendations.

In making these conclusions, I have relied upon the submissions provided by the
Department and the complainants. I have also considered a number of case studies which

3
Online Compliance Intervention system was launched by the Department in July 2016 for raising and
recovering Centrelink debts.

2
comprise the complainants’ individual FOI requests processed by the Department, some of
which were or are the subject of Information Commissioner review (IC review) under s 54L of
the FOI Act. An overview of these case studies can be found at Attachment B.

Pursuant to s 88 of the FOI Act, I can make formal recommendations which I believe the
Department ought to implement in order to improve its processing of FOI requests and
compliance with the FOI Act in general.

Investigation results

Issue 1: Approach to the interpretation of the scope of FOI requests

This issue was raised in complaints CP17/00532 and CP18/00323. The complainants alleged
that the Department narrowly interpreted the scope of FOI requests.

Paragraph 15(2)(b) of the FOI Act and the FOI Guidelines 4 provide that an FOI request is
required to provide such information as is reasonably necessary to enable a responsible
officer of the agency or the Minister to identify the document being requested.

Subsection 15(3) of the FOI Act requires an agency or minister to take steps to assist an
applicant to make a request which complies with s 15. I consider that this assistance is
particularly necessary in relation to s 15(2)(b). The FOI Guidelines 5 also provide that an
agency should not wait until the practical refusal stage to help an applicant to clarify their
request.

During the course of the investigations, the then Acting Deputy Information Commissioner
provided a set of preliminary observations to the Department. He observed that the
Department appeared to take a narrow interpretation of the scope of the complainant’s FOI
requests in LEX 24878, LEX 30852 and LEX 30853. He also noted that it did not appear that the
Department took into consideration clarifying statements made by the complainant in his
request for internal review in LEX 26547.

In response to the preliminary observations, the Department submitted that ‘while an

internal review can be used to refine the issues on review or narrow the scope of an FOI
request, in instances where the scope of the request is clear and the applicant was notified
of a decision that documents did not exist, it is not appropriate to redefine the scope on
internal review to capture a different set of documents’.

I agree with the Department to the extent that at internal review, it is inappropriate to
broaden the scope of an FOI request. However, the Department is under an obligation to
assist applicants and to facilitate and promote public access to information, promptly and at
the lowest reasonable cost. As the FOI Guidelines explain, the internal review officer can

4
FOI Guidelines [3.109].
5
FOI Guidelines [3.110].

3
exercise all the powers of the original decision maker including clarifying the scope of the
request with the applicant. 6

I consider that the Department could have taken into consideration the complainant’s
clarifying statements at the internal review stage and to do so would not have been
unreasonable.

The Department disagreed with the preliminary observations and submitted:

The Department rejects the serious allegation that it takes an approach to the interpretation of
FOI requests that is intended to obstruct access to documents. The OAIC has not provided
reasoning in support of its view that the Department takes an 'overly prescriptive
interpretation' of the scope of FOI requests.

I draw the Department’s attention to the series of recent Information Commissioner

decisions issued in June 2019, 7 which also examined the Department’s practices when
interpreting the scope of FOI requests. I note that these decisions highlight that the
Department’s narrow approach when interpreting FOI requests is inconsistent with the
objects of the FOI Act in so far as the functions and powers given by the Act are to be
performed and exercised, as far as possible, to facilitate and promote public access to
information, promptly and at the lowest reasonable cost.

I note that the Department has since advised the OAIC that it has amended the Department’s
FOI manual to include further guidance on the importance of adhering to a flexible approach
when interpreting the scope of a request submitting:

The department recognises that some applicants need further assistance to make a valid
request and that the department should not take a too narrow or pedantic approach when
interpreting the scope of FOI requests.
…
'... A request may be described quite broadly and must be read fairly, being mindful not
to take a too narrow or pedantic approach.' 8

The Department should apply this approach when processing FOI requests in the future.

The preliminary observations also identified that the Department’s FOI manual allowed for a
10 day period to assist an applicant to make a valid request under the FOI Act. The
preliminary observations raised that there was no legislative basis for the approach.

6
FOI Guidelines [9.2].
7
See ‘QG’ and Department of Human Services (Freedom of information) [2019] AICmr 23, ‘QI’ and
Department of Human Services (Freedom of information) [2019] AICmr 27 and ‘QJ’ and Department of
Human Services (Freedom of information) [2019] AICmr 28.
8
Amendment to the Department’s FOI manual, page 49, as submitted by the Department on 14 May 2019.

4
In response to the preliminary observations the Department submitted that the 10 day
processing period was for internal purposes only ‘intended to balance the need to provide
assistance while allowing time to explore opportunities that would enable an applicant to
access documents outside of the FOI Act’.

Although the complainants in these investigations have not raised this issue specifically, I
reiterate the preliminary observation’s commentary and note that my office will be
monitoring this practice.

Conclusions

The Department took a narrow approach to the interpretation of scope in LEX 24878, LEX
30852, LEX 30853 and LEX 31118. This approach is inconsistent with the objects of the FOI Act
in so far as the functions and powers given by the Act are to be performed and exercised, as
far as possible, to facilitate and promote public access to information, promptly and at the
lowest reasonable cost.

The Department did not take into consideration clarifying statements by the complainant in
LEX 24878 during their request for internal review (LEX 26547) where it was reasonable to do
so.

In light of my conclusions above I have made recommendations below which I believe the
Department ought to implement.

Recommendations: 1, 2, 4 and 6.

Issue 2: Approach to processing FOI requests relating to the OCI System

This issue was raised in CP17/00734. The complainant alleged that the Department delayed
the processing of FOI requests related to the OCI system resulting in the inability of the
media to report on matters which were significant to the Australian community.

The FOI Act provides for a statutory timeframe of 30 days to process an FOI request (s 15(5)).
That period can be extended by up to 30 days with the applicant’s agreement (s 15AA), by
30 days if consultation with a third party is undertaken (s 15(6)), by 30 days if consultation
with a foreign entity is undertaken (s 15(8)), or for a period approved by the Information
Commissioner for complex or voluminous requests (s 15AB) or following a deemed access
refusal decision (s 15AC). 9

During the course of these investigations, the Department submitted that there was no
specific process for FOI requests received from journalists. The Department however,
acknowledged that there are two teams which process FOI requests in the Department,
essentially one that processes requests for personal information and another team which
processes requests that are more ‘complex’ in nature, namely the ‘FOI Legal Team’. The ‘FOI

9
See also, FOI Guidelines at [3.125].

5
Legal Team’, is tasked with more complex FOI requests due to the complexity of the requests
and the requirement to ‘liaise with stakeholders and other impacted third parties’.

All FOI requests subject to these investigations were processed by the ‘FOI Legal Team’.

The preliminary observations provided to the Department during the course of these
investigations noted that the Department treats all requests from journalists as ‘significant’
and has a different procedure for processing such requests, and that the Department takes
an overly ‘prescriptive approach when interpreting the scope of FOI requests which impacts
on the processing of requests in a timely manner’.

The preliminary observations also raised that the Department appeared to utilise a number
of mechanisms to extend or suspend statutory processing timeframes as evident in
LEX 25661.

In response to the preliminary observations the Department submitted that it does not have
a separate process for processing requests from journalists, rather the separate team is
tasked with processing FOI requests from journalists because the requests are typically more
complex in nature and ‘require more liaison with stakeholders and other impacted third
parties’.10

The Department submitted it processes FOI requests in accordance with statutory

timeframes:
The Department contends that, appropriate deployment of extensions and suspensions of the
timetable is not a frustration of timely processing, it facilitates timely processing for all
requests and allows resource management to be structured around consistently meeting
statutory timeframes.

I have considered the method in which the Department processed LEX 25661. While the
Department’s actions were not unlawful, the cumulative application of the number of
mechanisms which stopped the statutory processing period meant that access to
information was not provided promptly.

In LEX 25426, the complainant sought access to ‘the most recent cost benefit analysis of the
Centrelink Data matching/debt recovery scheme’ and any documents relevant to complaints
and/or concerns and/or feedback from Centrelink staff regarding the data matching/debt
recovery programme during a specified timeframe.

The Department initiated a consultation process under s 24AB of the FOI Act on the basis
that the Department was not able to reasonably identify the documents sought.

10
The Department advises that the FOI Legal Team processes FOI requests of this nature.

6
The Department sought clarification about which data matching scheme the request
referred to and advised the applicant that part of their request for ‘complaints and feedback’
was ‘unclear’.

On the face of it and given that the request was lodged during a period of increased
community interest in the OCI system, it is reasonable to assume that the complainant was
seeking documents related to the OCI system. In this situation, I consider a phone call to the
complainant to discuss the scope of the request would have been sufficient to confirm (to
the extent confirmation was required), that the data matching scheme in which she referred
to was in fact the OCI system.

In similar circumstances, in LEX 25661 the complainant requested access to:

Briefings and/or correspondence and/or memos to the Minister from Centrelink regarding the
Centrelink debt recovery and/or data matching scheme between 1 December 2016 – current. 11

In response to a consultation notice issued by the Department (on the basis that it was
unable to reasonably identify the documents requested) the complainant ‘revised’ the scope
of the request to:

Briefings and/or correspondence and/or memos to the Minister from Centrelink regarding the
Online Compliance Intervention System (also known as the Online Compliance System and/or
the Online Compliance Review System) between 1 December 2016 – current.

Upon receipt of the ‘revised’ request, the Department then advised the complainant that it
had extended the processing period in order to consult with affected third parties under
s 27 of the FOI Act.

After the consultation process, the Department then issued a preliminary charges
assessment notice pursuant to s 29 of the FOI Act, which stopped the processing clock. 12

During the charges notification period, the complainant requested further information in
order to revise the scope of the request. The Department provided the complainant with a
simplified table. The complainant again sought further information to assist them to revise
the request. The Department provided a more detailed table to the complainant
approximately 20 days after the original request for further assistance during the charges
notification period.

It is clear from that chronology that the Department utilised a number of extensions to the
statutory timeframe, which the Department claims it is able to employ when processing FOI
requests.

11
See Attachment B for detailed chronology of the processing of LEX 25661.
12
Section 31 provides that if an applicant is notified during the statutory processing period that a charge
is payable, the processing period is extended until the applicant pays the charge or is notified by the
agency following a review that no charge is payable.

7
Although the complainant did not seek review of LEX 25661, after considering the material
submitted in relation to the processing of this FOI request, it is apparent that the
Department extended the processing period utilising the practical refusal mechanism
(s 24AB), third party consultations (s 27), and imposition of charges (s 29) provisions. As a
result the timeframe was extended from the 30 day statutory period to a period of 105
days. 13

When utilising the above provisions, which extend the statutory processing period, an
agency or Minister should do so alongside consideration of the overall objects of the FOI Act,
specifically, that Parliament intends that functions and powers under the FOI Act are
performed and exercised, as far as possible, to facilitate and promote access to information
at the lowest reasonable cost.

Conclusions

The Department took a narrow approach to interpreting the scope of the request LEX 25426
and utilised a number of extension of time provisions during the processing of LEX 25661.
Such an approach runs counter to achieving the objects of the FOI Act in so far as the
functions and powers given by the Act are to be performed and exercised, as far as possible,
to facilitate and promote public access to information, promptly and at the lowest
reasonable cost.

In light of my conclusions above, I have made recommendations below which I believe the
Department ought to implement.

Recommendations: 1, 2, 4 and 6.

13
On 5 May 2017, the Department provided a decision on whether to impose charges on the processing of
the request. It appears the applicant did not pay the charges and the Department advises that on 5
June 2017 it took the request to be withdrawn.

8
Issue 3: Compliance with s 24AB of the FOI Act

This issue was raised in complaints CP17/00734, CP17/00532 and CP18/00323.

All three complainants raised concerns regarding the Department’s compliance with s 24AB
of the FOI Act when utilising the practical refusal mechanism.

The complainants alleged that:

• the Department issued consultation notices under s 24AB in error

• the notices did not comply with the requirements under s 24AB(2), and
• the Department did not take reasonable steps during the consultation process to
assist the complainants to revise the request so that the practical refusal reason no
longer exists.

Section 24AA provides that an agency or minister may refuse a request if a ‘practical refusal
reason’ exists, where either the request does not sufficiently identify the requested
documents or the resource impact of processing the request would be substantial and
unreasonable. In either instance, the agency or minister must first follow a ‘request
consultation process’ under s 24AB before refusing the request.

Section 24AB(2) of the FOI Act, provides that a notice of an intent to refuse access must
include notice that the agency or minister intends to refuse the request, the reason for the
issuance of the notice, name and contact details with whom the applicant can contact to
discuss the request and advice that the consultation period is for a period of 14 days.

The FOI Guidelines, which the Department must have regard to, provide that an agency or
minister should adopt a flexible approach as to how an applicant may contact them. 14

As noted above, I recently considered these issues in a number of IC review decisions. 15 In

summary, I found that the Department at times had not complied with s 24AB(2) when
conducting a practical refusal consultation, 16 the Department did not take reasonable steps
to assist applicants during the practical refusal consultation process 17 and the Department
took a narrow approach to the interpretation of scope of FOI requests. 18

14
FOI Guidelines [3.131].
15
See Jack Waterford and Department of Human Services (Freedom of information) [2019] AICmr21, Justin
Warren and Department of Human Services (Freedom of information) [2019] AICmr 22, ‘QG’ and
Department of Human Services (Freedom of information) [2019] AICmr 23, ‘QH’ and Department of Human
Services (Freedom of information) [2019] AICmr 26, ‘QI’ and Department of Human Services (Freedom of
information) [2019] AICmr 27, ‘QJ’ and Department of Human Services (Freedom of information) [2019]
AICmr 28 and ‘QO’, and Department of Human Services (Freedom of information) [2019] AICmr 46.
16
Jack Waterford and Department of Human Services (Freedom of information) [2019] AICmr21.
17
Justin Warren and Department of Human Services (Freedom of information) [2019] AICmr 22.
18
‘QG’ and Department of Human Services (Freedom of information) [2019] AICmr 23.

9
The preliminary observations provided to the Department essentially observed that the
Department:

• took no steps to follow the procedure set out in its FOI manual to contact the
applicant informally by telephone or email to discuss the scope of the request before
initiating the formal request consultation process
• did not consult appropriately with the complainants in relation to LEX 25307, LEX
25426, LEX 26566 and LEX 26567
• at times took an overly technical approach to the interpretation of the scope
• issued a consultation notice in relation to the FOI request in LEX 26566, LEX 26567,
LEX 23507 and LEX 28338 that did not comply with the requirements of s 24AB(2) of
the FOI Act, and
• did not provide clear guidelines to FOI officers relating to the timeframes in which
contact officers should respond to requests for information during the s 24AB
process.

The Department during the course of these investigations acknowledged that the s 24AB
notices issued in LEX 26566, LEX 26567, LEX 23507 and LEX 28338 did not contain the name of
the FOI contact person. However, in each case the Department asserts that this did not
‘deprive’ the complainants of the ability to consult with the Department as they were able to
email the Department through its generic FOI team email address during the consultation
process.

In relation to consultation with the applicant during the consultation process, the
Department acknowledged that s 24AB does not prevent an agency from informally
consulting with an applicant where appropriate, however goes on to assert that ‘there is no
requirement under the FOI Act for this to occur’.

In all cases, the Department maintained it had provided reasonable assistance to the
complainants during each consultation process.

Name and contact details of an officer of an agency19

All three complainants raised concerns that the Department’s notices did not comply with
ss 24AB(2)(c) and (d) of the FOI Act. Specifically, there were occurrences where the
Department’s notices did not include the name of an FOI officer or direct contact details
other than a generic FOI team email address.

19
I note that I have recently conducted public consultation on the issue of disclosure of public servants’ names
and contact details. I am in the process of considering those submissions and will make further public
comment on that issue in the near future.

10
The main purpose of the practical refusal mechanism is for agencies to assist FOI applicants
to revise their FOI request so that a practical refusal reason no longer exists.

This purpose is expressly provided for in s 24AB(3) which provides that where an applicant
contacts an agency during the consultation process the officer is required to take reasonable
steps to assist. Reasonable steps include giving the applicant a reasonable opportunity to
consult with the contact person (s 24AB(4)(a)).

In submissions, the Department advised that it had changed its processes to include the first
name of the officer FOI applicants can contact during practical refusal consultation
processes.

It is the Department’s consistent position that the FOI Act does not require a contact
person’s ‘direct email and/or phone number to be provided’.

As discussed above, I have recently considered this issue in Jack Waterford and Department
of Human Services (Freedom of information) [2019] AICmr 21, where I found that a request
consultation notice must include the name of a contact officer to satisfy the requirements of
s 24AB(2).

In relation to providing direct contact details of contact officers during the consultation
process, although the Department’s interpretation of the requirements of s 24AB(2)(d) may
be technically defensible, when taking into consideration the impact of this approach
together with evidence during these investigations of delays in responding to the
complainant’s request for assistance, I do not consider the Department’s approach is in line
with the objects of the Act and its overarching obligation to assist FOI applicants in general.

Given that each of the complainants have separately raised the difficulty they have faced on
numerous occasions trying to contact the Department in order to discuss their FOI requests,
the Department should consider including in consultation notices the direct contact details
of contact persons, particularly given the outcome of a successful and meaningful
consultation process turns on whether the applicant is able to revise a request so that a
practical refusal reason does not exist.

It is a legislative requirement to have the name and contact details of the contact officer in
the consultation notice.

Assistance to revise request

This specific issue was raised by complainants in CP17/00532 and CP17/00734.

As discussed above, an agency or minister must take reasonable steps to assist applicants
during a consultation process so that the practical refusal reason no longer exists.

11
Further to the discussion above regarding the ability of the complainants to make contact
with the contact person to discuss their request, two particular instances 20 occurred where I
do not consider that the Department took reasonable steps to assist the complainants. This
was particularly in relation to its obligations under s 24AB(4)(b) to provide the applicant with
information that would assist the applicant to revise the request.

In LEX 26567, from the chronology of the processing of the request provided by the
Department, it is clear that the complainant responded to the consultation notice on the
same day requesting information which may assist them in revising the scope of the request.

The Department responded to the complainant on the final day of the consultation process
(14 days later) requesting an extension of time to respond to their request for assistance as
there had been delays receiving the information from the line business areas. The
complainant declined the Department’s request. Later that evening at approximately 7 pm,
the Department provided the information to the complainant.

The complainant responded two days later, after the conclusion of the consultation period.
As the complainant had responded outside of the consultation period, his request was
deemed by the Department as ‘withdrawn’.

During the course of these investigations, in support of its processing of the request, the
Department submitted:

In LEX 26567, the Department provided Mr Warren with a breakdown of the 250 relevant
documents. The Department asked Mr Warren to agree to extend the request consultation
period so that the Department could obtain further information that may have assisted Mr
Warren to revise his request. However, Mr Warren advised that he would not consent to this.
The effect of this was that Mr Warren received the breakdown of documents with little time to
consider and accordingly, did not respond to the Department within the consultation period,
rendering the request withdrawn pursuant to s 24AB(7). Had Mr Warren granted the extension,
the Department would have been in the position to provide Mr Warren with further assistance.
It was open to Mr Warren to submit a new FOI request using the information which was
provided to him through the consultation process in accordance with the FOI Act.

As discussed by the former Information Commissioner in Maria Jockel and Department of

Immigration and Border Protection [2015] AICmr 70 and more recently by me in Justin Warren
and Department of Human Services (Freedom of information) [2019] AICmr 22, it is imperative
that during a consultation process where an FOI applicant requests assistance in order to
revise the scope of the request so a practical refusal reason no longer exists, the agency is to
respond in a timely fashion and provide as much information as practicable. Provision of
information after business hours on the last day of the consultation period undermines the
consultation process.

20
Case studies LEX 26567 and LEX 25307. See Attachment B for a chronology of the processing of
LEX 25307.

12
During the course of these investigations, the Department also raised that due to ‘personal
safety and security’, it is the Department’s practice not to provide direct phone numbers to
FOI applicants that lodge FOI requests via the ‘Right to Know’ website.

In response to the preliminary observations, the Department advised that this practice is due
to:
… previous instances where staff names and direct contact details have been included in
documents published on the Right to Know website, and those officers have become subject to
threatening and harassing behaviour.

The Department also contended that as many customers are on restricted access
arrangements as well as others who have engaged in inappropriate conduct or pose a risk,
the Department’s practice of not including direct phone numbers in correspondence sent via
the Right to Know website is ‘sound’.

Conclusions

The Department’s notices in LEX 25307, LEX 26566, LEX 26567 and LEX 28338, issued under
s 24AB of the FOI Act, did not comply with s 24(2)(c).

The Department did not provide reasonable assistance to the complainants in LEX 25426,
LEX 25307, LEX 26566 and LEX 26567.

The Department did not respond in a timely manner to the complainant’s request for
assistance during the consultation process in LEX 26567.

In light of my conclusions above, I have made recommendations below which I believe the
Department ought to implement.

Recommendations: 1, 4, 6 and 7.

Issue 4: Combining FOI requests under s 24(2) of the FOI Act

This issue was raised in CP18/00323. The complainant alleges that the Department
combined a number of his FOI requests in order for a practical refusal reason to be
established. The complainant also complained that the Department, by combining requests,
delayed the provision of documents as it considers the commencement of the statutory
processing period to be the day on which the final request included in the combined request
was lodged.

Subsection 24(2) of the FOI Act provides that an agency or minister may treat two or more
requests as a single request if the agency or minister is satisfied that the requests relate to

13
the same document or documents, or the requests relate to documents, the subject matter
of which is substantially the same. 21

The FOI Guidelines relevantly explain that FOI requests can only be combined once a clear
connection between the subject matter of the requests has been established. The FOI
Guidelines 22 further explain that a straightforward example of this would be where one
request is for ‘folios 1-100 and another request is for folios 101-200 on the same file.’

The preliminary observations provided to the Department essentially observed that it

appeared that the Department delayed the complainant’s right to access documents under
the FOI Act. The preliminary observations also noted that there appeared to be no legal basis
for the Department to take the date of the second request as the commencement of the
statutory processing period for the combined FOI requests (LEX 31118).

The Department submitted that combining the FOI requests in LEX 31118 and taking the
date of lodgement of the last request as the commencement of the statutory processing
period, was permissible under s 24(2) of the FOI Act.

The Department submitted that as s 24(2) allows requests to be combined and does not
specify which date should be used to commence the processing period where requests were
lodged on different dates, the ‘approach which provides greater opportunity to facilitate
access sought is to take the date on which the last request was received’.

During the course of these investigations, the Department also submitted that as the FOI
Guidelines are ‘silent as to the date from which the statutory time-frame is calculated’ in
relation to FOI requests received on multiple dates, the Department was open to ‘calculate
the statutory timeframe based on the date that LEX 31118 was received’.

I note that the first request was received on 14 July 2017, and by the time that the third
request was received, the statutory processing period had already been in progress for 14
days. Although I am satisfied that where an agency receives a number of requests closely
relating to the same subject matter that it is open to combine the requests pursuant to
s 24(2), in these circumstances having regard to the objects of the Act, I do not consider
unilaterally re-starting the statutory processing clock once a further request was received
some 14 days later, is consistent with the objects of the Act.

Conclusions

The Department acted inconsistently with the objects of the Act in the matter of LEX 31118
when it combined the complainant’s FOI requests and took the date of the final request as
the commencement of the statutory processing period.

21
Section 24(2) of the FOI Act; see also FOI Guidelines [3.122] - [3.126].
22
FOI Guidelines [3.123].

14
The complainant’s right to access information was delayed without authority.

In light of my conclusions above, I have made recommendations below which I believe the
Department ought to implement.

Recommendations: 4, 6 and 7.

Issue 5: Imposition of a charge

This issue was raised in complaints CP17/00532 and CP17/00734. The complainants allege
that the Department did not take into consideration the public interest in the information
requested when deciding to impose a charge. 23

Section 29 of the FOI Act provides that an agency or minister may impose a charge to process
an FOI request in accordance with the Freedom of Information (Charges) Regulations 1982
(Charges Regulations).

When an agency or minister provides a preliminary assessment of charges to an applicant,

the applicant must, within 30 days, notify the agency or minister in writing whether they
agree to pay the charges, contest the charge or withdraw the request.

The FOI Guidelines relevantly explain that an important principle relevant to imposing
charges under the FOI Act is the provision of assistance to the applicant to frame FOI
requests. 24 This includes assisting applicants to revise a request to reduce or remove the
preliminary charges estimate.

The preliminary observations noted that it appeared that the Department did not sufficiently
consider the relevant public interest factors when deciding to impose charges in relation to
LEX 25661, or to provide reasonable assistance to the complainants to revise the scope of
the request during the charges notification period to reduce the charges estimate.

In response to the preliminary observations, the Department submitted that when it makes a
decision to impose charges it takes into consideration the public interest factors as set out in
the FOI Guidelines. 25

Given the subject matter of the requests (the OCI system) affected a large proportion of the
Australian community and the requests related specifically to non-personal information, I
consider it reasonable for the Department to have elected not to impose charges in response
to the FOI requests on the basis that the documents at issue could inform public debate on
the implementation of a government policy.

23
LEX 28338, LEX 25282 and LEX 26551.
24
FOI Guidelines [4.5].
25
FOI Guidelines [4.83].

15
In relation to the observation that it appeared that the Department did not assist the
applicant during the charges notification period to revise the request in order to reduce the
charges, the Department submitted:

Unlike s 24AB(3), there is no positive obligation in s 29 to 'reasonably assist' an applicant to

revise their request during a charges notification period. That said, the Department does
provide such assistance to applicants on request.

The Department’s submissions indicate that it considers the provision of assistance to FOI
applicants during a charges notification period to be discretionary, and it will only provide
assistance if requested.

The decision to impose a charge is discretionary. In exercising this discretion, an agency or

minister should take into account public interest factors and the ‘lowest reasonable cost’
objective stated in the FOI Act (s 3(4)). 26

If an agency or minister decides to impose a charge and commence a charges notification

period (which stops the processing clock), I consider that the agency or minister should
assist an applicant through that process, including assistance such as providing information
which may assist the FOI applicant to revise a request to either reduce the charges amount
or remove it entirely.

The preliminary observations also raised the appropriateness of the Department’s practice
to take changes to the original request made during the charges notification period, as a
revised request. I note the Department’s FOI manual at the time of the complaints provided:

If a preliminary estimate of the charge has been issued and an applicant wishes to revise the
scope, advise the applicant this will be treated as a new request. It will not be necessary for the
applicant to officially withdraw the previous request as it will be deemed withdrawn when the
time to pay the preliminary estimate of the charge expires. 27

However, as a result of the provision of preliminary observations, the Department advised

that it has changed its FOI manual to clarify that not all revisions of scope in response to a
preliminary charges notice constitutes a new request and any withdrawal by an applicant of
the FOI request, must be made in writing.

I consider that Department should include guidance about whether to impose a charge, in
addition to consideration on whether to reduce or waive a charge, in its FOI manual.

26
FOI Guidelines [4.3].
27
Submissions provided by the Department of Human Services regarding CP17/00532 and CP17/00734, 18
September 2017, Vol 1, Tab 1 para [44].

16
Conclusions

The Department did not sufficiently take into consideration relevant public interest factors
when deciding to apply charges where the documents released could be used to inform
public debate. 28

In light of my conclusion above, I have made recommendations below which I believe the
Department ought to implement.

Recommendations: 1, 4 and 5.

Issue 6: Payment of charges

This issue was raised in complaint CP17/00532. The complainant alleges that the
Department’s processes for receiving payment of charges via cheque or money order is
outdated and acts as a disincentive to FOI applicants.

Section 11 provides that every person has the legally enforceable right to access documents
held by the government. The FOI Act also provides that this should be done at the lowest
reasonable cost.

In ‘ND’ and Department of Human Services 29 (‘ND’), the former Information Commissioner
considered the issue raised by the FOI applicant and commented that: ‘where a charge is
justified, it would be in keeping with the objects of the FOI Act to ensure that the method of
payment should also facilitate prompt access to the documents’.

I understand that since the commencement of these investigations and the former
Commissioner’s decision in ‘ND’, the Department has taken reasonable steps to ensure that
its methods of collecting payments adhere to the objects of the Act and has provided
applicants with an alternative payment method.

Conclusions

At the time the complaint was made Department’s methods of payment were inconsistent
with the objects of the Act, to facilitate and promote public access to information, promptly
and at the lowest reasonable cost.

Issue 7: Disclosure Log content

This allegation was raised in complaint CP17/00734. The complainant alleges that the
Department does not maintain the disclosure log as required to do so under the FOI Act.

28
LEX 28338, LEX 25282 and LEX 25661.
29
‘ND’ and Department of Human Services (Freedom of information) [2017] AICmr 119 (20 November 2017)
at [25].

17
Subsection 11C(3) of the FOI Act requires an agency to publish information that has been
released in response to an FOI request to members of the public on a website, subject to a
number of exceptions set out in s 11C(1) of the FOI Act. Subsection 11C(6) requires an agency
to publish information within 10 working days after the FOI applicant is given access to the
information.

The FOI Guidelines provide that the disclosure log facilitates access to information released
under the FOI Act to individual applicants to all members of the community. This reinforces
the object of the FOI Act to promote a pro-disclosure culture across government and to
increase recognition that information held by government is a national resource. 30

During the course of the investigations, the Department provided advice about the process
taken by the Department when updating the disclosure log in response to documents
released under the FOI Act. Essentially, the Department publishes a short description of the
document on the disclosure log and information about how to obtain a copy of the
documents. This information is a ‘link which opens to an email addressed to the ‘FOI Legal
Team’. The Department further submits that requests for access to documents held on the
disclosure log are processed within 30 days.

The preliminary observations noted that the Department’s maintenance of its disclosure log
by providing links to documents is inconsistent with the objects of the Act. They found no
legal basis for the Department’s application of a 30 day processing period to provide
documents held on the disclosure log.

In response to the preliminary observations the Department submitted:

The manner in which the Department provides access to documents on its FOI Disclosure Log is
permissible, facilitates access to the documents and is appropriate given the volume of
documents listed on the FOI Disclosure Log.
Since 2013, the Department has maintained its FOI Disclosure Log in accordance with s 11
C(3)(c) of the FOI Act. In relation to documents released under the FOI Act that are subject to
disclosure log requirements, the Department publishes a brief description of the released
documents and information about how the document may be obtained. This is consistent with
the approach taken by many other agencies, including the Attorney-General's Department, the
Department of Agriculture and Water Resources, the Department of Veterans' Affairs, the
Department of Education and Training, the Department of Jobs and Small Business, and the
Australian Taxation Office.

30
FOI Guidelines [14.3].

18
In relation to the processing period imposed by the Department to process requests for
documents held on the disclosure log, the Department submitted:

The Department's FOI Disclosure Log process is not inconsistent with the FOI Act. The FOI Act
does not provide statutory timeframes within which the Department must respond to
disclosure log requests made under s 11 C(3)(c).
The Department responds to disclosure log requests as quickly as practicable, having regard to
its resources and FOI processing workload.
The Department implemented an internal administrative timeframe to ensure requests are
responded to within a maximum 30 day period, and to ensure that disclosure log requests are
given sufficient priority in the context of the FOI Act, noting that there are no statutory
timeframes in place.

I note that there are three methods that information contained in accessed documents can
be published on the disclosure log:

a) making the information available for direct download from the disclosure log (s
11C(3)(a))
b) publishing a link to another website from which the information can be downloaded
(11C(3)(b)), or
c) by publishing details of how the information may be obtained (s 11C(3)(c)).

I consider that it would be consistent with the objects of the FOI Act that, unless it is not
reasonably practicable to do so, documents should be made directly available for download
from a website (s 11C(3)(a) or (b)). The Explanatory Memorandum to the Freedom of
Information Amendment (Reform) Bill 2009 states:

… subsection 11C(3) provides that the information is to be published to the public

generally on a website. If the information cannot readily be published on a website,
the website should give details of how the information may be obtained.

Where information cannot readily be published on a website, and details of how the
information may be obtained are published on the website, I consider the practice of
allowing up to 30 days to process the disclosure log request to be inconsistent with the
objects of the Act and the purpose of the disclosure log. Given that the statutorily imposed
processing time to upload the information onto the disclosure log (s 11C(6)) is 10 working
days, I consider a more reasonable timeframe to provide a response to a request to
information the existence of which is detailed on the disclosure log would be within five
working days.

Given the Department’s submissions about its workload, the Department should consider
whether it would be a more efficient process for the Department to make the documents
available directly from the disclosure log on its website, ensuring the documents are readily
accessible - satisfying s 11A(3)(a) of the FOI Act - while also reducing the processing burden
of providing access for documents which have already been subject to an access decision.

19
Conclusions

The Department permits a 30 day processing period to respond to requests for access to
information on the FOI disclosure log which is inconsistent with the objects of the FOI Act.

In light of my conclusion above, I have made recommendations below which I believe the
Department ought to implement.

Recommendations: 1, 3 and 5.

Issue 8: Transfer of requests to the Minister’s office

This issue was raised in CP18/00323. Essentially the complainant alleges that Department
delays the transfer of requests under section 16 of the FOI Act.

Section 16 of the FOI Act provides that an agency or minister can transfer a request to
another agency or minister where the documents are not in the possession of that agency.

The FOI Guidelines explain that the transfer of a request under s 16 facilitates and promotes
access by avoiding the need for the applicant to make a new request to another agency or
minister and also by providing a whole of government approach to making information
available to the public. 31

During the processing of LEX 31118, the Department initiated a consultation process where
the complainant alleges that he was encouraged to narrow the scope of the request to the
point that the Department was aware that it did not hold any documents within the revised
request.

LEX 31118 was subsequently refused on the basis that the Department did not hold any
documents within the scope of the revised request and advised the complainant that the
request should be directed to the Minister’s office.

The Department did not seek to transfer the FOI request where it appeared to be appropriate
to do so and the Department did not have any guidance for FOI officers in its FOI manual on
whether it is appropriate to transfer requests, particularly after a revised scope has been
received by the Department.

In response to the preliminary observations, the Department submitted that, although it

considered that its current guidance covered the circumstances where a revised request was
received, the Department was considering providing additional guidance in its FOI manual.

The Department also advised that it had created a separate email address to assist
applicants to make FOI requests to the Minister directly rather than via the Department.

31
FOI Guidelines [3.59].

20
The processing of LEX 31118 indicates that the Department could have done better.
However, as a result of these investigations the Department has advised that it will take
steps to review its processes. I consider these steps, if implemented, will increase guidance
for FOI officers and also assist FOI applicants to direct their FOI requests to the most
appropriate body.

Conclusions

The Department did not have sufficient guidance in its FOI manual in relation to transfer of
requests under s 16 where a revised scope has been provided by the applicant with the
assistance of the Department.

During the consultation process, the Department did not advise the complainant that his
revision of scope meant that the Department was no longer the appropriate agency from
which to request access to the documents sought.

The Department did not seek to transfer the request to the Minister’s office where it
appeared appropriate to do so.

In light of my conclusions above, I have made recommendations below which I believe the
Department ought to implement.

Recommendation: 5.

Issue 9: Delays in the provision of documents

This allegation was raised in complaint CP18/00323. The complainant alleges that the
Department delayed the provision of documents without explanation for the delay.

Section 11A of the FOI Act provides that where a decision has been made to grant access to a
document, the agency or minister must give the FOI applicant access to that document in
accordance with the FOI Act, subject to ss 11A(4)-(6).

Once a decision has been made to give an applicant access to a document under the FOI Act,
access should be given as soon as practicable, subject to the payment of applicable charges
and the expiry of any relevant third party review rights. 32

An issue arose during the processing of LEX 30854 where the Department provided a decision
to provide documents on 14 August 2017. At the time of the decision, the Department
advised the complainant that the documents were ‘being prepared’ and would be provided
to the complainant ‘shortly’.

32
Subsections 26A(4), 27(7) and 27(6) and see also FOI Guidelines [3.188] and [14.23].

21
The Department provided the complainant with the document released under this decision
14 days later on 28 August 2017. The document at issue consisted of a single page.

The preliminary observations noted that it appeared the Department had unreasonably
delayed access to the document released in LEX 30854 without explanation.

In response, the Department acknowledged that there was a period of 14 days between the
date of the access decision and the date of the provision of the document, however the
Department submits that ss 11 and 11A ‘do not state the timeframe within which documents
must be release to an FOI applicant’ and the provision of documents released needs to be
conducted ‘taking into account the Department’s FOI workload and compliance with
statutory timeframe’.

During the course of these investigations, the Department advised that the provision of the
document was delayed due to the need to ‘prepare the document for release (including
converting it into a useful format)’.

I acknowledge that there is no timeframe within the FOI Act which stipulates when an agency
or minister must provide any documents to an FOI applicant as a result of an access
decision. However, I note that s 3(4) of the FOI Act provides that ‘[t]he Parliament also
intends that the functions and powers given by this Act are to be performed and exercised,
as far as possible, to facilitate and promote public access to information, promptly and at
the lowest reasonable cost’.

I also acknowledge that there will be situations where there may be unavoidable delays in
providing the documents to FOI applicants, however in these circumstances, I consider the
Department could have taken further steps to advise the complainant of the reasons for the
delay and provided a timeframe for delivery.

Conclusions

The Department’s delay in providing access to the document released in LEX 30854 without
reasonable explanation was contrary to the objects of the FOI Act.

In light of the above conclusion, I have made recommendations below which I believe the
Department ought to implement.

Recommendation: 5.

Recommendations
I note the Department’s advice of 14 May 2019, that it has taken steps to address the
concerns that were raised in the former Acting Deputy Commissioner’s preliminary
observations of 12 October 2018.

22
I acknowledge that the Department’s processes may have been further reviewed and revised
since the provision of the Department’s submissions to the OAIC and that the Department’s
processes and practices, in relation to these complaints, may therefore be historical.

The purpose of my recommendations, as set out below, are to conclude the complaint
investigations and ensure the Department meets its obligations under the FOI Act, including
that the Department’s current and future processes and practices are consistent with the
objects of the FOI Act. This is particularly important, given the volume of FOI requests
processed by the Department, on average 6635 FOI requests per year, 33 which places it
second behind the Commonwealth’s largest recipient of FOI requests, the Department of
Home Affairs.

Pursuant to s 88 of the FOI Act, I make the following investigation recommendations which I
consider the Department ought to implement:

1. A statement is provided to staff highlighting the Department’s obligations under the

FOI Act and the pro disclosure emphasis in the Act. This statement should encourage
and support staff in meeting their obligations under the FOI Act, to facilitate and
promote public access to information, promptly and at the lowest reasonable cost.
2. The Department take an approach to interpreting the scope of FOI requests in
accordance with its obligations under s 15(3) of the FOI Act in a manner that as far as
possible, seeks to facilitate and promote public access to information. This approach
should be reflected in guidance material and in training for staff on processing of FOI
requests.
3. The Department develop a policy that provides that where information that is
subject to multiple FOI requests, it is uploaded onto the Department’s disclosure log
as soon as practicable. The policy should also include reference to these documents
in the acknowledgement letter for relevant FOI requests to assist the applicant in
obtaining information as quickly and efficiently as possible.
4. The Department update its FOI manual to include references to recent Information
Commissioner decisions and FOI Guidelines on:
a. the imposition of charges, particularly where the request relates to matters
of significant community interest, and
b. the interpretation of scope and s 24AB process.
5. The Department update its FOI manual to include guidance about:
a. consideration of s 16 transfers once the scope has been revised
b. the provision of documents as soon as practicable under s 11A and where the
Department is unable to do so, notification to the applicant about the
reasons for the delay and an estimated date of delivery

33
2016/17 (7457), 2017/18 (6238) and 2018/19 (6210).

23
 c. responding to requests for documents held on the disclosure log which are
otherwise not readily accessible via the disclosure log as soon as possible,
but within five working days.
d. where the Department has received multiple requests for the same subject
matter, implement a process through which they can identify and utilise
work previously undertaken. This process would also be used to inform
whether it is appropriate to commence a consultation process under s 24AB
or the imposition of charges
e. when it is appropriate to combine requests under s 24(2). This includes the
consideration of factors such as:
i. the timespan between receipt of requests
ii. whether there is a clear nexus between the requests
f. factors to consider whether to impose a charge, including factors set out in
the Guidelines issued under s 93A of the Act.
6. The Department within six months of these conclusions conduct audits on the
following and report back to the OAIC:
a. The adherence to the FOI processing manual by FOI officers in relation to
matters the subject of recommendations four and five above when
processing FOI requests including:
i. Steps taken by FOI officers during the interpretation of scope process
to ensure the procedures as listed in the FOI manual are followed
ii. Steps taken by FOI officers during the consultation process to ensure
the procedures, as listed in the FOI manual, are followed.
7. The Department ensure processes are in place to assist applicants through the
s 24AB consultation process that include the provision of a contact phone number.
This could be either a dedicated monitored FOI Team line or direct phone numbers
for case officers, or both.

24