Freedom of information law

To make effective use of FoI rights, applicants need to be able to identify the location of information in which they may have an interest. Common types of personal information held by Australian Government agencies include taxation records, records relating to benefits paid by Centrelink and the Department of Veterans’ Affairs, as well as migration and passport records.

Individuals seeking to access documents containing other information, such as information about government policies and programs, can apply to the agency that they believe administers the policy or program of interest. Asking the minister or the FoI officer at the relevant agency about how the information might be obtained and looking at the agency website, in particular their section under the Information Publication Scheme, are good starting points.

The right of access to documents in the possession of the Australian Government is provided in two ways: 1 Commonwealth agencies are required to publishinformation about their operations and their powers that affect the public, and their manuals and other decision-making documents under the Information Publication Scheme (ss 8, 8A); and 2 Commonwealth agencies must provide access to requested documents in their possession unless the documents are within an exception or exemption specified in the legislation (pts III, IV; schs 1,

2). An agency or minister has the discretion to give access to an exempt document where that access can be given lawfully. Section 3A of the FoI Act (Cth) encourages this approach. The key terms, ‘agency’, ‘document’, ‘document of an agency’, ‘exempt document’ and ‘official document of a minister’ are defined in section 4(1) of the FoI Act (Cth). ‘Document’ is widely defined and includes any record of information but does not include ‘material maintained for reference purposes that is otherwise publicly available or cabinet notebooks’. To be accessible, the document must be in the possession of the agency or minister when the FoI application is received. Subject to limited exceptions, where the applicant has requested access in a particular form, they must be given access in that form (s 20(2)). Access to computer-stored material may, subject to the normal exemptions and exclusions, be given by providing the information on a computer disk. Alternatively, if the applicant would prefer to access the requested information in written document format, access may be given by providing a computer printout or transcript where feasible (s 17).

Under section 15 of the FoI Act (Cth), a valid FoI request must:

• be in writing;
• specify that it is made under the FoI Act (Cth);
• provide sufficient information to identify the documents sought;
• provide details of how the applicant may be contacted; and
• be delivered to an agency at a specified address (including by email to the nominated address). Many agencies have a dedicated FoI page on their website and accept applications for access by post, email or in person. It is unnecessary for the applicant to provide any reasons for seeking access to documents (s 11(2)). There is also no fee for making a request but processing charges may apply. See ‘Fees and charges’, below. Section 15(3) of the FoI Act (Cth) imposes a duty on agencies to take reasonable steps to assist applicants to make their requests comply with the requirements of the Act. If an applicant needs help framing their request, they should contact the FoI officer of the relevant agency. Section 15(4) also imposes a duty on agencies to assist applicants to direct their FoI application to the correct agency. It is also possible that the request may be transferred to the most relevant agency once it has been made (s 16). An agency or minister is required to notify an applicant of their decision no later than 30 days after receiving the FoI request (s 15(5)(b)); however, the time period can be extended for a number of reasons. For instance, a further 30 days is allowed where the decision-maker needs to consult with a state or territory government, an individual or a business as required under the Act, or with a foreign government or international organisation (ss 15, 26A, 27, 27A). Time may also be extended with the applicant’s agreement or with the approval of the AI Commissioner if the AI Commissioner is satisfied that the request is particularly voluminous or complex (ss 15AA, 15AB). Narrow grounds for deferring access are also provided (s 21). A decision to defer access is reviewable on internal review, review by the AI Commissioner and subsequent appeal to the Administrative Appeals Tribunal (AAT).

Documents or parts of documents can be withheld if they are exempt under a specific provision under Part IV of the FoI Act (Cth). Part IV provides for two different kinds of exemptions: 1 exempt documents; and 2 conditionally exempt documents. Exempt documents Exempt documents are more difficult to access. If a document meets the criteria for one of the following categories, the relevant agency or minister is not required to give access to the document, regardless of the public interest assessment (s 11A(4)).

Exempt documents include:

• documents affecting national security, defence or international relations (s 33);
• cabinet documents (s 34);
• documents affecting law enforcement and protection of public safety (s 37);
• documents to which secrecy provisions of enactments apply (s 38);
• documents subject to legal professional privilege (s 42);
• documents containing material obtained in confidence (s 45);
• Parliamentary Budget Office documents (s 45A);
• documents the disclosure of which would be contempt of a parliament, court, tribunal or royal commission (s 46);
• documents disclosing trade secrets or commercially valuable information (s 47); and
• electoral rolls and related documents. Where it is possible and reasonable for an agency or minister to prepare an edited copy of a document in redacted form (i.e. edited to obscure exempt or irrelevant information that cannot be disclosed), the agency or minister must do so and give the applicant access to the edited copy (s 22).

  Conditionally exempt documents

  In contrast, if a document meets the criteria for one of the following categories, the relevant agency or minister must give access to the document unless, in the circumstances, access to the document would, on balance, be contrary to the public interest (s 11A(5)). There is therefore a presumption in favour of access to conditionally exempt documents. Conditionally exempt documents include docu­ ments relating to:
• Commonwealth–state relations (s 47B);
• deliberative processes (s 47C);
• financial or property interests of the Commonwealth (s 47D);
• certain agency operations, such as an agency’s operations, audit, examination or employee management (s 47E);
• personal privacy (s 47F);
• business or professional affairs (s 47G);
• research conducted by specified agencies (s 47H); and
• Australia’s economy (s 47J). Section 11B sets out the factors that apply for the purpose of working out whether access to a conditionally exempt document would be contrary to the public interest. The factors favouring access to the document include whether the disclosure would:
• promote the objects of the FoI Act (Cth), including all the matters set out in sections 3 and 3A;
• inform debate on a matter of public importance;
• promote effective oversight of public expenditure; and
• allow a person to access their own personal information. The following factors, among others, must not be taken into account:
• the seniority of the author of the document;
• that disclosure would be embarrassing to the Australian Government or cause a loss of confidence in the Australian Government;
• that disclosure could result in any person mis­ interpreting or misunderstanding the document; and
• that disclosure could result in confusion or unnecessary debate. Under section 11B(5), agencies and ministers must comply with any guidelines issued by the AI Commissioner in relation to the public interest test.

There is no fee for asking to access documents. However, agencies and ministers can charge fees for processing requests to access documents (s 29). These costs are set out in the Freedom of Information (Charges) Regulations 2019 (Cth) (‘FoI Regulations (Cth)’) and are summarised below.

Two important exceptions exist where no charges apply. First, where an applicant requests access to their own personal information, including income support information, no charge is payable (reg 7(1), FoI Regulations (Cth)). Second, an agency or minister cannot charge a fee if they don’t make a decision about an access request within the statutory time limits, unless they have an extension (regs 7(2), 7(3)).

Where an agency or minister decides that the applicant is to pay a charge in relation to their request for access to documents, the applicant is to be provided with an estimate of charges and how the charge is calculated (s 29(1)(b)). If the applicant does not accept the estimate, or does not seek to have it reviewed within 30 days, the FoI request is deemed to have been withdrawn (s 29(2)). Applicants can elect not to continue with the application after being advised that charges may apply.

Applicants can ask for charges to be reduced or waived at any time on any grounds. In considering the applicant’s request, the agency or minister must consider whether paying the charge would cause financial hardship and whether giving access to the document is in the public interest (s 29(5)). An agency or minister can still decide to impose a charge even though it would cause the applicant financial hardship or disclosure would be in the public interest. However, there is a right of internal review, review by the AI Commissioner and appeal to the AAT on the imposition or amount of the charge.