Facilitating access while in isolation – the practical impact on information access regimes31 March 2020
On 18 March 2020, the Office of the Australian Information Commission (OAIC) released updates regarding COVID-19. If you have not already done so, we encourage all FOI Teams to take the time to read these updates and keep an eye out for further advice from the OAIC.
- https://www.oaic.gov.au/freedom-of-information/frequently-asked-questions/how-can- agencies-meet-statutory-timeframes-during-the-covid-19-pandemic/
- https://www.oaic.gov.au/privacy/guidance-and-advice/coronavirus-covid-19- understanding-your-privacy-obligations-to-your-staff/
In short, the OAIC recognises that Agencies are under unprecedented pressure and highlights that it will be taking a flexible and sensible approach to assisting agencies with their Privacy and FOI loads. The OAIC also recommends that Agencies be proactive in contacting applicants early to notify them of any processing constraints that may have arisen due to COVID-19.
Here at Sparkes, we’ve been keeping an eye on how the Commonwealth’s different information access regimes may be affected during this time.
We’ve put together some practical advice on issues your Agency may be experiencing in the current climate, including requesting an extension of time (EOT) if they are required due to COVID-19.
Managing your Information Access Load
Statutory Information Requests - Court Orders/Subpoenas/Summons
Courts and Tribunals are issuing updates on COVID-19 and posting them on their respective websites. These sites are a great resource for Agencies to consult and confirm if certain Court or Tribunal practices and/or systems have changed.
Most Courts and Tribunals have indicated a willingness to be flexible during this time. We have noticed some non-urgent matters are being adjourned until further notice. We have also noticed that electronic filing of documents is being encouraged where possible.
We anticipate that Courts and Tribunals will be open to the grant of an EOT for the production of documents where there are legitimate reasons as to why a Department requires it in the current climate.
If you have any concerns about meeting a production time, we recommend you be proactive in requesting an EOT if required.
APP12 and Administrative Access requests
Whilst there isn’t a formal extension of time mechanism for these types of requests, we encourage all Agencies to get on the phone early to applicants and seek an extension of time if required.
Based on the OAIC’s updates, it appears to us that the OAIC will be flexible should any of these matters progress to a formal complaint on the issue of timing during the COVID-19 pandemic.
If you consider that your Agency may need more time to process a specific FOI request, we recommend you seek an extension under s 15AA of the FOI Act from the applicant as soon as possible.
If you are applying to the OAIC for an EOT under s 15AB of the FOI Act, you should provide as much detail as you can in your application. In addition to the typical reasoning as to why a request is complex or voluminous, you should explain any staffing/processing/access issues that may have arisen due to COVID-19.
Remember, Agencies must notify the OAIC of all EOTs. For s 15AA and s 15AB extensions you can do by using the OAIC’s smart form. Any s 15AC requests must be made in writing addressed to the OAIC via email.
Depending on matter load and your Agency’s specific circumstances, the OAIC’s update recommends that Agencies consider:
- updating FOI webpages and FOI forms to include information about how COVID-19 is affecting the processing of FOI requests, and
- updating acknowledgment letters to include an automatic request for an extension of time by agreement, pursuant to s 15AA of the FOI Act because of the impact on COVID- 19 on the Agency and its business areas.
You may also wish to consider discussing with the OAIC whether a bulk OAIC notification process for s 15AA notifications is a possibility for your Agency.
Complying with your Privacy Act obligations – what to remember
The impact of the COVID-19 pandemic is impacting agencies in different ways but we are seeing many Agencies look to move their functions and processes online and sending out a higher than usual volume of communications to clients about the impact that the COVID-19 pandemic is having on their functions and any changes being made in these circumstances.
Given the dynamic and evolving situation, it's important to remember that your obligations under the Privacy Act 1988 and Australian Privacy Principles (APPs) remain.
With any new project or communication requiring the use or disclosure of your client's information, you are required to consider APP 6.
APP 6 provides that Agencies must not use or disclose collected personal information for a secondary purpose unless the relevant individual has consented, or another exception applies. The OAIC have provided some COVID-19 related advice here.
Are your processes changing?
We also encourage Agencies to think about some practical challenges they may face with their information access workforce working remotely – for example, whether they have access to the necessary software to undertake redactions via a remote gateway, whether business areas who are commonly consulted in response to requests can access the systems they need remotely and whether delegates are available to make decisions given they may also be self-isolating.
Consideration may also need to be given to applicant’s circumstances where they are not in a position to provide a certified copy of their identification documentation because of self- isolation requirements.
Sparke Helmore has a team of more than 20 experienced Information Law practitioners, led by subject matter experts Chantal Tipene and Katherine Whittemore. If your Agency requires any assistance or advice with Information Access matters during these challenging times, please contact your Client Relationship Partner or contact Chantal Tipene, Katherine Whittemore or Stuart Marris.