Background
FOI enables individuals to access information held by public authorities or government bodies, such as Government Owned Corporations / Government Trading Enterprises.
Each Australian jurisdiction has its own FOI legislation under which applicants may seek access to information (except exempt information) held by the Government.
In 2021, the Office of the Victorian Information Commissioner, the South Australian Ombudsman, and the Office of the Information Commissioner WA, engaged researchers at Monash University to research the culture of administering FOI legislation.
On 18 June 2024, Monash University released its report into the implementation of FOI across Victoria (Freedom of Information Act 1982 (VIC)), South Australia (Freedom of Information Act 1991 (SA)), and Western Australia (Freedom of Information Act 1992 (WA)), The culture of implementing Freedom of Information in Australia (the Report).
The Report distils the findings of surveys and interviews conducted across 96 Government agencies, and provides valuable insight into the challenges faced by FOI practitioners across Australia.
The Report makes a number of recommendations for reform which, if implemented, may result in significant changes to the FOI landscape in Victoria, South Australia, and Western Australia.
The importance of FOI further supported by the Parliament of Australia as described in December 2023 'Australia's FOI system … [is] vital to a healthy and well-functioning democracy, a fundamental aspect of the rule of law, crucial to ensuring government transparency and accountability, and essential to enabling the public to participate in and scrutinise government decision-making.”
Parliament of Australia, Senate Legal and Constitutional Affairs References Committee 'The operation of Commonwealth Freedom of Information laws' (December 2023) [2.2].
Key concerns
While the research project uncovered a number of themes, the key common concerns raised by FOI practitioners were:
- Proactive release of information: Proactive information release refers to information released by Government outside the FOI legislation (ie without the need for a FOI application). A number of practitioners commented that the intended purpose of, and their agency's policy towards, proactive release was unclear.
- Vexatious applicants: Numerous practitioners reported dealing with repeat and vexatious applicants, and expressed that existing legislative frameworks were inadequate at addressing this issue.
- Poor records management: A common theme across all jurisdictions was the importance of good records management in the context of performing FOI obligations. Reported challenges included a lack of staff compliance and antiquated document retention systems (for example, hard copy documents 'sitting in warehouses').
Artificial Intelligence (AI) and FOI
The researchers also interrogated the use of technology and AI by FOI practitioners in Victoria, South Australia, and Western Australia.
The use of AI in FOI records management received mixed response from practitioners. Some practitioners expressed concern about the potential of human biases in the coding of AI and its ability to grasp the nuances required under FOI legislation. Others saw the potential of AI in a limited capacity, with clearly defined roles and datasets.
Recommended reforms
Legislative recommendations include expressing in legislation that proactive information release is the default, amending procedures to reflect modern digital environments, and including mechanisms for dealing with vexatious applicants.
Administrative recommendations include improving adherence to record management policies, providing FOI education and training for agency employees, and supporting agencies in developing proactive release policies.
The Report also made a number of jurisdiction-specific recommendations:
1. South Australia:
- Reviewing advice given to FOI applicants with respect to NDIS application (the researchers found that NDIS applicants were routinely being encouraged to make FOI applications to receive patient information).
- Examining how proactive release could assist sectors by releasing commonly requested documents by default.
2. Victoria:
- Providing the local government sector with more bespoke proactive release guides to provide for greater consistency in across the sector.
3. Western Australia:
- Reviewing and reforming the Freedom of Information Act 1992 (WA).
- Updating the Office of the Information Commissioner WA website to be user friendly to both applicants and practitioners.
- Providing sectors with more bespoke education and examples.
- Examining how proactive release could assist sectors by releasing commonly requested documents by default.
Government response
The Office of the Victorian Information Commissioner and the Office of the Information Commissioner WA both issued statements broadly in support of the Report's findings, however, at this stage, no State Government has committed to implement the recommendations. We are monitoring the status of the Report and will update this article if the recommended reforms are adopted.
MinterEllison's national Government team has extensive experience assisting FOI practitioners and in-house legal Counsel with complex FOI applications. Additionally, MinterEllison is market-leading in its development of AI technologies that may streamline voluminous document reviews and analysis.
If you are dealing with a challenging or voluminous FOI application, or a legally complex external review, or require training for your team, we can assist.
