Commonwealth freedom of information: Accessing documents

2 Feb

Written By For Good Digital

To make effective use of freedom of information rights, it is helpful to consider the likely location of the information that is being sought. 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.
Other information, such as information about government policies and programs, is likely to be held by the agency that administers the policy or program. Asking the minister or the freedom of information officer at the relevant agency about how the information might be obtained and looking at the agency website, in particular their 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 publish information under the Information Publication Scheme (see above) (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).
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 freedom of information 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)).
There is a wide right of access. It is possible for an applicant to access documents that do not relate directly to themselves, subject to limitation on accessing third party personal information (see below).
For a freedom of information request to be valid it must (s 15):
- 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 freedom of information 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 freedom of information officer of the relevant agency.
Section 15(4) also imposes a duty on agencies to assist applicants to direct their freedom of information 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).
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 effectively creates three categories of documents :
1. exempt documents;
2. conditionally exempt documents; and
3. non-exempt documents.
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).
Exempt documents
If a document falls into one of the following categories, the relevant agency or minister is not required to give access to the document (s 11A(4)):
- 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 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).
An agency or minister also 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.
Conditionally exempt documents
In contrast, there is a presumption in favour of access to conditionally exempt documents. If a document falls into 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)):
- 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).
Access to a conditionally exempt document is less likely to be contrary to the public interest if it would (s 11B):
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; or
- allow a person to access their own personal information.
The following factors must not be taken into account:
- that disclosure could be embarrassing to the Australian Government or cause a loss of confidence in the Australian Government;
- that disclosure could result in any person misinterpreting or misunderstanding the document;
- that the author of the document was (or is) of high seniority; 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. The guidelines are available on the website of the OAIC: www.oaic.gov.au/freedom-of-information/freedom-of-information-guidance-for-government-agencies/foi-guidelines.
Non-exempt documents
All other documents are non-exempt and therefore must be provided in response to a freedom of information request.
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)’). See the OAIC website for details: https://www.oaic.gov.au/freedom-of-information/how-to-access-government-information/make-a-freedom-of-information-request/what-charges-may-apply.
Importantly, no charges apply where:
- an applicant requests access to their own personal information (FOI Regulations (Cth) reg 7(1)); or
- an agency or minister does not make a decision about an access request within the statutory time limits (inclusive of any extensions) (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 freedom of information request is deemed to have been withdrawn (s 29(2)).
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, although these factors are not determinative (s 29(5)). The imposition and the amount of any charges are subject to a right of internal review, review by the AI Commissioner and appeal to the ART.