Administrative access schemes can be an attractive alternative to formal FOI processes, but they need to be used judiciously.
The Office of the Australian Information Commissioner has published a guidance paper setting out how agencies can set up an administrative access scheme, outside the formal processes of the Freedom of Information Act 1982 (Cth), for the release of government information.
Amongst other things, the guidance paper provides examples of the types of information and documents that might be appropriate for release under an administrative access scheme and suggests procedures that an agency might wish to put in place to deal with requests made under it.
Where does the idea of an administrative access scheme come from?
The Australian Information Commissioner, Professor John McMillan, first formally referred to the idea of an administrative access scheme in his February 2012 report to the Attorney-General on the review of charges imposed under the FOI Act.
In his Report, Professor McMillan recommended, amongst other things, that agencies be encouraged to establish administrative access schemes which would operate outside of the processes of the FOI Act and enable members of the community to request access to information or documents that are open to release under the FOI Act. This recommendation was based on Professor McMillan's view that administrative access schemes can provide quick and informal information release in a way that can reduce the cost both to applicants and to agencies.
What is an administrative access scheme?
Under an administrative access scheme, government information can be released after a specific request is made outside the formal process set out in the FOI Act.
Administrative access can be as informal as a person calling or emailing an agency seeking access to information or documents and receiving a response via telephone or email. It could, unlike the FOI Act, also apply to requests for information which, if provided, might mean the person doesn't need to seek access to documents under the formal FOI process.
What sorts of information are most appropriate for an administrative access scheme?
Administrative access schemes would be best suited to apply to certain types of documents such as:
- documents containing personal information of the requester, particularly those documents supplied by the requester;
- personal information of a requester who is a current or former employee of the agency;
- statistics or data relating to the agency's key functions and activities;
- documents that would be released in full if the request were made under the FOI Act;
- discrete information that can be provided more simply and efficiently than through an FOI
- discrete information that can be provided more simply and efficiently than through an FOI request - for example, information contained in a document which could be provided to a FOI applicant but in circumstances where the remainder of the document which is not of interest to the FOI applicant would have to be redacted.
... And what sorts aren't?
There will be certain types of requests which will clearly not be suitable for consideration under an administrative access scheme. These include requests:
- for documents to which statutory secrecy provisions are likely to apply;
- for documents which are likely to require third party consultations; and
- requiring significant agency resources to process and for which the agency would want to recoup some costs.
Such requests could be dealt with under the FOI Act processes without having to be considered under the administrative access scheme.
Why should agencies establish an administrative access scheme?
An administrative access scheme offers benefits both to agencies and members of the public seeking information and documents, such as:
- it advances the objects of the FOI Act by promoting open government;
- it encourages flexibility and engagement with the community;
- it emphasises dialogue and negotiation between agencies and the community rather than automatic deferral to formal legal processes;
- it offers the possibility of cost benefits and quicker processing times by avoiding the formal processes required to be followed in the FOI Act.
Setting up an administrative access scheme
In considering what kind of administrative access scheme to establish, an agency should consider its size, the type of work it carries out, the types of requests for information or document it usually receives and its regular procedures for public contact and access.
Where an agency establishes an administrative access scheme, the Australian Information Commissioner recommends that the agency should publish its procedures on its website to manage client expectations.
Some of the features that the Australian Information Commissioner recommends should be part of any administrative access scheme are:
- no access fees for documents or information provided under administrative access. However agencies can obtain an applicant's agreement to charge for copying and postage. In some circumstances, it may also be appropriate for agencies to recover costs incurred from collating information for the requestor as distinct from simply giving access to existing documents;
- a 30 day turn around for processing requests;
- a standard approach to establishing proof of identity where personal information is sought;
- a clear outline of any charges that the agency will impose for copying or postage;
- an efficient process for referral of the request to the formal FOI process where the FOI Act's processes are likely to be more appropriate or where the requester would prefer to apply under the FOI Act;
- a process for dealing with complaints about how a request is dealt with under the scheme;
- information about the FOI Act process and an explanation as to how the administrative access scheme supplements and does not detract from an applicant's rights under the FOI Act.
FOI Act protections probably apply to administrative access schemes
It is the Australian Information Commissioner's view that the protection against civil action and criminal prosecution set out at sections 90, 91 and 92 of the FOI Act for agencies and officers who publish or give access to documents under the FOI Act would also probably apply to the good faith release of information or documents under an administrative access scheme.
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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.