Response to OAIC’s Disclosure Log Discussion Paper

Thank you for the opportunity to provide comments in response to the Disclosure Log Discussion Paper March 2011:

General Comments

  • The proposed requirements outlined in the discussion paper appear to go beyond the requirements outlined in s.11C of the FOI Act. To the extent that they do, they impose a significant additional burden on the Tribunals, in particular in terms of resourcing, amendments to existing systems, licencing fees and compliance (Q12). It is difficult to see the reasons for requiring additional information as outlined in several parts of the discussion paper without reasons being provided by the IC (for example those outlined in part h of the paper – Q5, Q6 and Q7). Without a clear idea as to the reasons for imposing the additional obligations, it is difficult to support them. In this regard, it would be preferable to provide information that is clearly required for some reason.
  • More guidance in relation to ‘routinely accessed information’ (s.8(2)(g)) would be beneficial.

Comments on Discussion Paper Questions

Q2. Taking into account the possibility of an IC determination that the requirements in s.11C do not apply to personal file requests, it is appropriate for FOI applicants and 3rd parties to be informed of the requirements in s.11C at an early stage. However, in relation to inviting comments about whether an exception applies, is more problematic. There is no statutory obligation to seek comments and doing so will add an extra layer to the FOI decision making process which will impact on an agency’s resources, particularly a small agency. Further, it may potentially complicate matters during the consultation phase with 3rd parties which may produce confused responses. At what stage of the process would comments be sought and what process would be followed if an objection was raised? Would it be similar to the consultation process under ss.26A, 27 or 27A? If comments were sought from 3rd parties as to the application of exceptions, it would be preferable not to do so until after a decision has been made on release of documents containing 3rd party information to the FOI applicant. More guidance in relation to what is ‘unreasonable’ and how the exceptions should be applied would be helpful and the more preferable approach.

Q3. Yes. In respect to FOI requests received by the Tribunals for the period March 2009 – March 2010, only 0.59% were for non-case related documents and for the period March 2010 – March 2011, only 0.41% were for non-case related documents. The bulk of FOI requests received by the Tribunals are for personal case files which contain a substantial amount of personal information which is not of general public interest and it is unreasonable to publish. A determination by the IC in respect to this class of documents is highly desirable for the Tribunals as it would alleviate the additional burden placed on the Tribunals’ resources to make a separate decision on a case by case basis as to what information released should be published unders.11C. This in turn will enable the Tribunals to direct its resources to administering and complying with other aspects of the IPS.

Q5. & Q6. Refer to ‘General comments’. Can the IC explain the rationale for seeking this kind of information? Further clarification is required in relation to statistics for ‘the number of FOI requests resolved during that period that are not listed in the disclosure log, and the reason for not listing them’ on p.11. What types of FOI requests does the IC envisage would not be listed in the disclosure log? Would this relate to classes of documents subject to a determination?

Providing the kinds of statistical information requested by the IC would impose a significant additional burden on the Tribunals in terms of creating new systems, changing the functionality of its case management database and incurring development costs.

Q7. & Q8. Refer to ‘General comments’. Although it may be prudent for a standard template to be used for the disclosure log, it is unclear as to why all the headings and information specified in the draft template needs to be provided and in our opinion it appears unnecessary and is excessive, resource intensive and goes beyond the requirements outlined in s.11C. There should be a degree of flexibility as to the type of information provided in a disclosure log as it will depend upon the nature of the FOI request. Agencies that receive a range of FOI requests may need to include additional information so that the log is understandable, whereas in the case of the agencies that deal primarily with requests for personal case files, only limited information or possibly no information (if the IC was to make a determination), would need to be included in the log.

Q9. No. In respect to the ‘additional information’ referred to on p.12 there appears to be no clear justification for providing such information. To provide such information would impose a significant additional burden on the Tribunals in terms of changes to its case management database and resourcing.

Q11. Yes

Q12. Developing a disclosure log that is ‘easily discoverable, understandable, machine-readable and accessible’ will impact financially on the Tribunals in terms of licensing fees to expand the search functionality and it will also have significant resource implications.

Q13. 12 months may be a reasonable period, but the timeframe will depend largely upon the value of the information and the volume of information. In some instances a shorter or longer period may be warranted. The capacity of an individual agency’s server to hold large volumes of information will also impact upon how long information can be made available on its website. Furthermore upgrades to Tribunal hardware/ new systems are dependent upon and subject to ‘whole of government’ agreements.

Q14. The disclosure log should not indicate when information is likely to be removed, as this will be burdensome and resource intensive. It is reasonable to include the date on which information was in fact removed.

Q15. No. Agencies should not be bound by particular timeframes and information should be provided as soon as possible (but in accordance with 10 working days as legislated). It would be preferable not to impose significant additional obligations on agencies without a clear rationale for doing so.

Q16. It would be preferable not to impose significant additional obligations on agencies without a clear rationale for doing so.