CHAPTER 4 | information and access

FREEDOM OF INFORMATION

Complaints about the actions of agencies

Subsection 53(3) of the Freedom of Information Act 1989 (ACT) requires the Ombudsman to report on complaints about the handling of Freedom of Information (FOI) requests by ACT Government agencies.

This year, we received seven complaints in which the handling of requests made under FOI provisions by five agencies was raised as an issue. These complaints mostly related to concern about delays in providing documents and/or reasons for exemption. Frequently our intervention seeks to have the agency expedite a response.

Freedom of Information requests to the Ombudsman

In 2003–04, we received two FOI requests under section 14 of the Freedom of Information Act 1989. No fees or charges were collected from the applicants. One matter resulted in all information requested being released within the required time limit. In the other, there were partial exemptions to exclude telephone numbers and email addresses, resulting in the information being released seven days outside of the time limit.

There were no requests for internal review, and no applications for review of decisions were made to the Administrative Appeals Tribunal. We incurred costs totalling $426.81 in processing FOI requests in 2003–04.

PUBLIC INTEREST DISCLOSURE

As provided for by the Public Interest Disclosure Act 1994 (ACT) (the PID Act), a person may make a public interest disclosure, including to the Ombudsman. Complaints of this nature are usually sensitive and often complex, and their investigation requires a great deal of care.

One area of difficulty is that the facts making something a PID Act matter can be intertwined with other events that have given rise to a disagreement or dispute between a person and a government agency. Often the person is employed by the agency. It can be difficult to separate the PID issues from other events, particularly if there is a complaint of unlawful recrimination attributable to a PID Act disclosure. It is common for the PID issue to emerge (or, at least, to be notified formally) some time after the disagreement or dispute is first manifested.

'Complaints of this nature are usually sensitive and often complex, and their investigation requires a great deal of care.'

Notwithstanding these practical and legal difficulties, the PID Act is an important thread in the fabric of democratic, ethical and accountable government in the ACT. The Ombudsman has appropriately been given a role under the PID Act, and it is one that we take seriously. Since the PID Act has been in place, the Ombudsman has received on average one disclosure a year. However, there was a significant increase in 2003–04, with six disclosures received about five agencies, as outlined below.

• Two complaints were referred to the Ombudsman by an agency when it realised it had not initially recognised that certain disclosures had been made under the PID Act. Ombudsman staff met with both the complainant and the agency to determine how best to progress the complaint. Further consideration of this complaint will continue in early 2004–05.
• In March 2004, the Auditor-General referred a complaint for our consideration. This complaint continues to be investigated.
• We referred one complaint to the Auditor-General as the more appropriate authority to consider the matter.
• In one complaint received directly from a complainant, Ombudsman staff decided there was insufficient evidence to determine whether the PID Act had been breached or whether there had been an unlawful reprisal.
• In another complaint received directly from a complainant, the Ombudsman was satisfied that the agency was properly conducting its own investigation and declined to investigate further.

Ombudsman staff also continued to investigate a PID complaint that had been made to the office in 2002–03. A report on that matter will be completed early in 2004–05.

TERRITORY RECORDS

During the year, the ACT Ombudsman's office implemented a Records Management Program in accordance with the Territory Records Act 2002 (ACT). This program ensures that:

• all ACT Ombudsman records are stored appropriately and securely
• relevant position profiles and duty statements reflect the records management skills required by the Ombudsman's office
• training is available for records management and general staff in record keeping skills and responsibilities
• a controlled language system developed for the Ombudsman's office is used by staff
• the Ombudsman's approved Records Disposal Schedule is implemented and monitored appropriately.