Freedom of information law

The Freedom of Information Act 1982 (Cth) (‘FoI Act (Cth)’) creates a legally enforceable right for any person (including legal persons such as corporations and trusts) to obtain documents held by Australian Government ministers and most Australian Government agencies, including Norfolk Island agencies. Certain agencies are exempt from disclosing a document in response to an FoI request, including various Australian intelligence and defence organisations, the Auditor-General and the Parliamentary Budget Office.

The purpose of the FoI Act (Cth) is provided in sections 3 and 3A. Broadly, the FoI Act (Cth) aims to increase:

• community access to information held by the Commonwealth Government by providing a right to access information and by imposing an obligation on government agencies to publish information;
• public participation in government decision- making;
• scrutiny, discussion, comment and review of the government’s activities; and
• recognition that information in the government’s possession is a national resource. Generally, access to such documents must be granted within 30 days unless the document falls into one of the exemptions or exclusions contained in the FoI Act (Cth) (ss 11A, 15(5)). See ‘Exemption provisions’ below. Further, the FoI Act (Cth) only provides access to an ‘official document of a minister’ (defined in s 4). This means that personal documents, documents of a party political nature and documents about a minister’s electorate affairs are not subject to release under the FoI Act (Cth). It is not necessary for an applicant to have ‘standing’ of the kind required to succeed with a request under the Administrative Decisions (Judicial Review) Act 1977 (Cth); i.e. an applicant need not demonstrate that their interests are adversely affected by a decision or determination. If an applicant’s request is denied, they may apply for the decision to be reviewed internally or for the decision to be reviewed by the Australian Information Commissioner (s 54L) and subsequently to the Administrative Appeals Tribunal (s 57A) (see ‘Contacts’ at the end of this chapter). In circumstances where a review is sought, the onus is generally on the party claiming the application of an exemption to prove that the material ought to be withheld from release (ss 55D, 61).

  Information Publication Scheme

  In addition to granting a right to obtain information, the FoI Act (Cth) also requires government agencies to publish a broad range of information under the Information Publishing Scheme (pt II). The purpose of the Information Publishing Scheme is to promote a pro-disclosure culture across government and to encourage openness and transparency. The scheme does this by creating an FoI framework that requires agencies to take an open and proactive approach to publishing information, rather than merely respond to individual requests for access to documents. Section 8 of the FoI Act (Cth) sets out 10 classes of information to be published under the Information Publication Scheme, including an agency’s plan to comply with the FoI Act (Cth) (s 8(1)), and information about ‘the functions of the agency, including its decision-making powers and other powers affecting members of the public’ (s 8(2)(c)). There is also a requirement for agencies to publish documents that have been accessed following a request under section 15(2) of the FoI Act (Cth), subject to certain exceptions (s 11C). Publication is to take place within 10 working days of the documents being released to the FoI applicant (s 11C(6)). There is no rule about how long such documents are to remain public.

  Contracted service providers

  In addition to government agencies, the FoI Act (Cth) also applies to documents held by contracted service providers that are providing services to the public on behalf of agencies. Agencies are required to take contractual measures to ensure that documents held by a service provider relating to their performance under the contract are supplied to the agency if an FoI access request is received (s 6C). This requirement applies only to Commonwealth contracts entered into after 1 November 2010 (s 6C).

Commonwealth FoI laws are overseen and administered by the Office of the Australian Information Commissioner (OAIC). The OAIC is an independent regulator, led by the Australian Information Commissioner (AI Commissioner).

The OAIC performs various functions in relation to FoI and privacy, including:

• overseeing FoI in the Commonwealth;
• investigating complaints about the handling of FoI requests by agencies;
• promoting awareness of the FoI Act (Cth);
• issuing guidelines;
• undertaking merits review;
• performing administrative duties (e.g. approving extensions of time for agencies to process FoI requests); and
• declaring applicants to be vexatious.