NUMBER OF FOI DECISIONS AND DECISION MAKERS

The number of FOI decisions made by agencies increased from 2014 to 2019. In 2018-19, agencies made 34,564 FOI decisions, which is a 3.76% increase from 2017-18, and an overall increase of 14.77% from 2014-15 (Table 5).

However, the number of agency decision makers decreased by 5.20% for all agencies between 2014 and 2019.¹For the top 30 agencies, the number of decision makers decreased by 12.12% between 2014 to 2019.

The workload for each decision maker increased correspondingly. The number of requests per decision maker for all agencies increased from 52.96 requests in 2014-15 to 65.22 in 2018-19. For the top 30 agencies, the number of requests per decision maker increased from 127.43 requests in 2014-15 to 167.37 in 2018-19.

These statistics suggest agencies are under resourced when it comes to administering the FOI Act.

The FOI Professional Standards, issued by the Information Commissioner under Part IB of the FOI Act, took effect on 2 December 2019. Professional Standards 1.1 and 1.2 require an agency to consider whether a document in its possession, which is requested under the FOI Act, can properly be provided to the applicant outside the FOI Act. If it can, the agency is required to facilitate access to that document or advise the applicant on how the document can be accessed. OVIC expects this new requirement will reduce the number of formal FOI decisions agencies make in the future.

Table 5: Number of FOI decisions made by agencies and agency decision makers from 2014 to 2019

TIMELINESS OF DECISION MAKING

Section 21 requires an agency to notify an applicant of a decision on a request within 30 days,² unless this time is extended for third party consultation or with the applicant’s agreement.³

There are also exceptions under the FOI Act as to how calendar days are calculated for responding to valid requests. The processing period for unreasonably large requests is suspended under section 25A. Additionally, if a deposit is sought from an applicant, the time period commences when the deposit has been paid, or the timeframe can be negotiated to reduce the amount of charges payable.⁴

On average, between 2014 and 2019, agencies processed 88.45% of requests on time (within the requirements of section 21) (Table 6).

Timeliness decreased between 2014-15 and 2016-17, from 94.50% to 89.79% respectively. There was a more significant decrease in timeliness between 2016-17 and 2017-18, from 89.79% to 82.62% respectively.

This change is likely due to the reduction in the statutory processing time from 45 to 30 days in section 21, and the introduction of mandatory third party consultation requirements, which commenced on 1 September 2017.⁵

The decrease in timeliness could also be attributed to:

• the increased number of documents being created and held in agencies (resulting in more documents to consider in searching for documents relevant to a request);
• the increased number of FOI requests received overall;
• the increased number of FOI requests being processed in agencies at the same time; and
• resourcing issues such as the decreased number of decision makers in agencies.

Table 6: Timeliness of agency decision making from 2014 to 2019

FOI DECISION MAKING

Section 13(a) creates a legally enforceable right to obtain access to a document of an agency – other than an exempt document. When making an FOI decision, an agency may decide to grant access to a document in full, in part, or decide to deny access to it in full.⁶

From 2014 to 2019, agencies provided full access to requested documents in most FOI requests. On average, around 66.96% of requests were granted in full, 29.60% of requests were granted in part, and 3.43% of requests were denied in full per year (Table 7).

However, the percentage of requests granted in full decreased, from its highest in 2014-15 at 70.25% to its lowest in 2018-19 in 64.79%. The percentage of requests granted in part increased from 27.45% in 2014-15 to 31.20% in 2018-19, while the percentage of requests denied in full increased from 2.30% in 2014-15 to 4.01% in 2018-19.

This change may be due to decision making trends across certain sectors. Around 92.41% of requests processed by health sector agencies were granted in full (Table 8). Most requests to health sector agencies are made by applicants seeking access to their personal information, such as medical records.

The percentage of full access decisions decreased slightly between 2014 to 2019, from 93.95% to 91.75% respectively. The overall decrease in full access decisions may be attributed to the decrease in full access decisions made by health sector agencies.

Most requests processed by government departments, law enforcement and emergency, and statutory authorities were granted in part (around 67.39%, 66.16% and 58.44% respectively). There was greater fluctuation in the types of decisions made by these sectors. An increase in the number of requests received by these sectors may reflect a change in decision outcomes.

Table 7: Breakdown of total FOI decisions from 2014 to 2019

Table 7: Breakdown of total FOI decisions from 2014 to 2019

Table 8: Breakdown of FOI decisions by sector from 2014 to 2019

Table 8: Breakdown of FOI decisions by sector from 2014 to 2019

TOP FIVE MOST COMMONLY USED EXEMPTIONS

From 2014 to 2019, five exemptions under the FOI Act accounted for over 90% of all exemptions cited by agencies:⁷

1. Section 33(1): the protection of an individual’s personal affairs information;
2. Section 38: where a secrecy or confidentiality provision in legislation, other than the FOI Act, prohibits the disclosure of information;
3. Section 35(1): the protection of information obtained by an agency in confidence;
4. Section 30(1): internal working documents containing opinions, advice or recommendations where it would be contrary to the public interest for those documents to be released; and
5. Section 31(1): law enforcement documents where the disclosure would prejudice a fair trial, an agency’s statutory functions or enforcement of the law.

From 2014 to 2019, the most frequently cited exemption was section 33(1) (Table 9). Section 38 was the second most commonly claimed exemption, and the use of sections 30(1), 31(1) and 35(1) fluctuated over time.

Section 33(1) is commonly relied on to exempt names, contact details, address and location information, and other personal details relating to individuals other than the applicant. This information is usually relevant to both personal and non-personal requests, which may explain the greater use of section 33(1) compared to other commonly claimed exemptions.

Between 2014-15 and 2015-16, the use of section 38 increased from 1,199 to 2,120 times respectively, and from 2015-16 to 2018-19, section 38 remained the second most claimed exemption.

OVIC’s 2018-19 Annual Report noted the use of section 38 as a common issue arising in review applications that year.⁸ After careful consideration of the relevant secrecy provision, in some cases the Information Commissioner determined the provision did not qualify as a secrecy provision for the purpose of section 38, and therefore did not meet the requirements of section 38.⁹

Table 9: Exemptions most commonly cited in original decisions from 2014 to 2019 and the number of times exemptions were cited

USE OF SECTIONS 25A(1) AND 25A(5) – REFUSAL TO GRANT ACCESS TO DOCUMENTS

Section 25A(1) may be used to refuse to grant access to documents in accordance with a request without processing it, where an agency is satisfied the work involved in processing the request would substantially and unreasonably divert its resources from its other operations.¹⁰

Section 25A(5) outlines that an agency may refuse access to documents in accordance with a request without having identified any or all of the documents, if it is apparent from the nature of the request the documents would be exempt, and where removal of the exempt material would not facilitate release of the documents, or if it is clear the applicant does not seek an edited copy of the documents.

The use of sections 25A(1) and 25A(5) is significant as an agency may categorically refuse a request without identifying or assessing any or all documents.

The number of times these provisions were cited between 2014 to 2019 increased overall (Table 10). The number of times section 25A(1) was cited by agencies from 2014 to 2019 increased by 61.70%, from 126 times to 329. Similarly, despite a decrease between 2015-16 and 2017-18, the number of times section 25A(5) was cited by agencies also increased by approximately 27.34% between 2014 and 2019, from 101 times to 139 respectively.

The increased use of sections 25A(1) and 25A(5) may be due to several factors, including the relative increase in FOI requests received by agencies and corresponding increase in FOI decisions made. The increased use of section 25A(1) could also be attributed to an increase in complex and larger requests combined with reduced staff resources and statutory timeframes under the FOI Act.

Table 10: Use of sections 25A(1) and 25A(5) in original decisions from 2014 to 2019

1. Only agency officers authorised in accordance with section 26 of the FOI Act can make FOI decisions. However, an agency may have other FOI staff responsible for processing requests, who do not make the final FOI decision.
2. In September 2017, the time for deciding a request was reduced from 45 days to 30 days by section 8 of the Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017 (Vic).
3. Section 21(1) of the FOI Act.
4. Sections 22(5) and 22(6) of the FOI Act.
5. Sections 8, 12, 13, 14, 15, 16, 18 and 19 of the Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017 (Vic).
6. Section 25 of the FOI Act provides an agency may provide access to an edited copy of a document with exempt or irrelevant material deleted if it is practicable to do so and it appears from the request (or the applicant subsequently indicates) that the applicant would wish to have access to an edited copy.
7. Office of the Victorian Information Commissioner, OVIC Annual Report 2018-19, 90 (https://ovic.vic.gov.au/wp-content/uploads/2019/10/OVIC-Annual-Report-2018-19.pdf); Office of the Victorian Information Commissioner, OVIC Annual Report 2017-18, 59 (https://ovic.vic.gov.au/wp-content/uploads/2018/09/OVIC-2017-18-Annual-Report.pdf); Office of the Freedom of Information Commissioner, FOIC Annual Report 2016-17, 49 (https://ovic.vic.gov.au/wp-content/uploads/2018/07/FOIC-Annual-Report-2016-2017.pdf); Office of the Freedom of Information Commissioner, FOIC Annual Report 2015-16, 49 (https://ovic.vic.gov.au/wp-content/uploads/2018/07/FOIC-Annual-Report-2015-2016.pdf).
8. Office of the Victorian Information Commissioner, OVIC Annual Report 2018-19, 58 (https://ovic.vic.gov.au/wp-content/uploads/2019/10/OVIC-Annual-Report-2018-19.pdf).
9. A reference to the Information Commissioner also includes a reference to the Public Access Deputy Commissioner.
10. Section 25A(1)(a) of the FOI Act; section 25A(1) may also be applied, in the case of a Minister, where the Minister is satisfied that the work involved in processing the request would substantially and unreasonably interfere with the performance of the Minister’s functions, section 25A(1)(b) of the FOI Act.