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This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Freedom Of Information (FOI) (ACT)


Freedom of Information (FOI) law is designed to promote accountable, transparent and responsible government, and in the Australian Capital Territory, this law is contained in the Freedom of Information Act 2016. The Act gives the public the right to access government-held information about themselves or policies, unless there is exemption or access is not in the public interest.

What information can I access?

A person can apply to the Chief Minister, Treasury and Economic Development Directorate to access FOI documents held by an agency or a minister that contains personal information, or is used to make policy or administrative decisions. “Agencies” include public service agencies, territory-owned corporations, universities, courts and public authorities such as police.

An FOI application can be made online. The applicant must be notified within 10 working days whether their application is valid. The Act allows 20 working days to process an application, but the department can extend this if it needs to consult with others or clarify the application.

Access to the document can be granted in several ways, including as hard copy; in electronic form; as an opportunity to inspect, listen or view (if the document is sounds or images); or as a written transcript if the information is recorded as audio, or shorthand or other encoded format. Access must be unconditional.

The agency has a right to delete information it considers to be information contrary to the public interest information.

Personal information

A person can also apply to have their personal information corrected or amended where it is inaccurate, incomplete, out of date or misleading, where that information is used, has been used or is available for use by an agency.

Charges

There is no fee for an FOI application but processing fees can apply. If charges are to be imposed, an applicant can request a fee waiver if:

  • the information was available publicly but is no longer available publicly;
  • the information is of a special benefit to the public;
  • they hold a concession card;
  • they are a not-for-profit organisation and the application relates to the activities or purposes of the organisation;
  • they are a member of the Legislative Assembly.

FOI Decisions

After assessing an FOI application, the agency can decide:

  • to grant access;
  • the information is not held by the agency;
  • to refuse to provide access because the information is contrary to the public interest information;
  • to refuse to deal with the application;
  • to refuse to confirm or deny the information is held by the agency because the information is contrary to the public interest information, and doing so would:
    • endanger the life or physical safety of a person;
    • be an unreasonable limitation on a person’s rights;
    • significantly prejudice an ongoing criminal investigation.

The agency can refuse to deal with an FOI application on the grounds the information is readily available to the applicant, or the application is an abuse of process, or frivolous or vexatious. It can also refuse an application on the basis it would require an unreasonable and substantial diversion of the respondent’s resources. In deciding this, the agency must consider the resources that would be needed to identify, find, collate and examine documents, and to consult with others.

Review

If an applicant disagrees with an FOI access decision made by an agency or minister, they can seek an Ombudsman’s review of a decision. If they are not satisfied with the Ombudsman’s decision, they can seek a review by the ACT Civil and Administrative Tribunal.

Contrary to the public interest information

When deciding whether release of information is in the public interest, the agency or minister must weigh up factors for and against disclosure. The Act sets out factors to be considered.

In favour of access, factors include whether the disclosure would:

  • promote open discussion of public affairs and enhance the government’s accountability;
  • contribute to positive and informed debate on important issues or matters of public interest;
  • inform the community of government operations, including policies and codes of conduct;
  • ensure effective oversight of spending;
  • allow or help inquiry into possible deficiencies in the conduct or administration of an agency;
  • reveal or substantiate misconduct of an agency or public official;
  • advance the fair treatment of people or groups;
  • reveal the reason for a government decision;
  • reveal the information was incorrect, out of date, gratuitous, unfairly subjective or irrelevant;
  • contribute to the administration of justice, protection of the environment, promotion of public health and safety, or facilitation of research.

In favour of refusing access, factors include whether the disclosure would:

  • prejudice the collective responsibility of government or individual politicians;
  • prejudice the protection of a person’s right to privacy;
  • not be in the best interests of a child;
  • prejudice the conduct of considerations, investigations, audits or reviews by the Ombudsman, integrity bodies or other authorities;
  • prejudice security, law enforcement or public safety;
  • impede the administration of justice, including procedural fairness;
  • prejudice the security or good order of a corrective services facility;
  • impede the protection of the environment;
  • prejudice the ACT economy;
  • prejudice the flow of information to police or other regulatory body;
  • prejudice relations with other governments;
  • prejudice trade secrets, business affairs or research.

When deciding whether disclosure of information would be on balance contrary to the public interest, the agency or minister must not consider factors such as:

  • the potential for a person to misinterpret or misunderstand the information;
  • the seniority of the document’s author;
  • the potential for confusion or unnecessary debate;
  • that access to the information could inhibit frankness in the provision of advice from the public service;
  • the applicant’s identity, circumstances or reasons for seeking access.

For advice or representation in any legal matter, please contact Armstrong Legal.

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