Freedom of Information
Administrative law is designed to promote accountable, transparent and responsible government, and the Freedom of Information Act 1982 is a critical part of it.
The Act gives the public the right to access government-held information about themselves or policies, information that is used in government decision-making.
The legislation aims to increase public participation in government processes, with a view to enable better-informed decision making, as well as to increase scrutiny, discussion, comment and review of government activities.
Functions and powers under the Act are designed to facilitate and promote public access to information, promptly and for the lowest reasonable cost.
Each state and territory also has FOI law which regulates agencies in their jurisdiction.
What information can I access?
You can access documents held by Federal Government agency or minister that:
- contains personal information;
- is used in policy making;
- is used to make administrative decisions.
You cannot access documents classed as exempt under Freedom of Information laws or accessible to the public under other arrangements.
Exemptions can apply to information:
- that affects national security, defence or international relations;
- contained in cabinet documents;
- that affects law enforcement and public safety;
- subject to secrecy restrictions (such as taxation, child support, or patent laws);
- that is legally privileged;
- that is collected in confidence;
- where disclosure would be in contempt of parliament or court;
- that contains trade secrets or commercially valuable information;
- contained in electoral rolls.
Conditional exemptions can apply when the information is:
- personal and it is unreasonable to disclose it;
- about certain operations of an agency (such as an audit);
- about deliberations relating to agency or minister’s functions;
- about relations between federal and state governments;
- commercially sensitive and could damage the economy;
- about financial or property interests of the Commonwealth.
However, refusal of a Freedom of Information request must also be against the public interest. The Act sets out factors to be considered when deciding whether release of a document is in the public interest.
In favour of access, factors include:
- the aims of the Act, such as public participation in government decision making;
- whether the information would inform debate on a matter of public importance;
- whether the information would promote effective oversight of public spending;
- allowing a person to access their own personal information.
Factors which must not be considered in deciding whether to release the document:
- embarrassment to or loss of confidence in the government;
- potential for a person to misinterpret or misunderstand the information;
- the seniority of the document’s author;
- potential for confusion or unnecessary debate.
Documents accessible to public under other arrangements
Freedom of Information laws cannot be used to source documents available under the Archives Act 1983 or accessible to the public for a fee, such as in a land title register. It also does not apply to documents held by certain institutions, such as the Australian War Memorial, the National Library of Australia, and the National Film and Sound Archive.
Some agencies are exempt from providing documents under the Act, including Aboriginal Land Councils, the Parliamentary Budget Office, the Auditor-General, and intelligence agencies such as the Australian Security Intelligence Organisation and Australian Signals Directorate.
Some agencies are exempt from disclosing certain documents. For example, the ABC and SBS do not have to disclose program material, and the NBN does not have to release details of its commercial activities.
What is a document?
The Act applies only to information in the form of a document, which is defined as:
- any paper or other material on which there is writing or marks, figures, symbols or perforations;
- a map, a plan, a drawing or a photo;
- any article from which sounds, images or writing can be reproduced;
- any article on which information is recorded or stored electronically or mechanically.
This includes copies of parts of copies of the documents.
How do I lodge a request?
You should contact the relevant agency or minister first, because most have arrangements to access information.
You have the right to access information and have it amended or annotated if you believe it is inaccurate, incomplete, out of date, misleading or incorrect.
Under Section 15 of the Act, the request must be in writing to the minister or agency, and state that it is an FOI application. It must provide enough details to identify the document, and an address for where it is to be sent. Reasons for the application are not required.
There is no initial charge to lodge a request but a minister or agency can charge you to process the request and for you to access the document(s). An estimate of the cost must be supplied to you, and you have 30 days to respond. You can agree to pay the cost, ask for the cost to be reduced or removed, or withdraw your request.
When will I receive a decision?
A letter acknowledging the request will be sent to you within 14 days. A decision must be made within 30 days but this period can be extended if:
- the agency or minister needs to consult with a third party;
- you agree to a time extension;
- the request is complex or large;
- you have yet to provide a response on the estimated cost.
Access to the document can be granted in several ways, including as hard copy, in electronic form, or as an opportunity to inspect, listen or view (if the document is sounds or images).
You can request the document in a form you prefer, and it must be provided in that form unless the requested form is unsuitable, it would cause unreasonable interference with the work of the agency or minister, or it would infringe copyright.
Information in the document could be exempt and this copy might be deleted. The agency or minister must explain why this has been done.
If no decision on the request is made within 30 days, the request is deemed to have been refused. You then have right to ask for review.
For advice on this or any legal matter, contact Armstrong Legal.