Commonwealth freedom of information legislation

2 Feb

Written By For Good Digital

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 access to documents held by Australian Government ministers and most Australian Government agencies. Certain agencies are exempt from the FoI Act (Cth) (s 7), including various Australian intelligence and defence organisations, the Auditor-General and the Parliamentary Budget Office.
Broadly, the FoI Act (Cth) aims to increase (ss 3, 3A):
- community access to information held by the Commonwealth Government;
- 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.
The FoI Act (Cth) provides for access to any ‘document of an agency’ and ‘official document of a Minister’ (defined in s 4). This means that personal documents of ministers, documents of a party political nature and documents about a minister’s electorate affairs are not subject to release under the FoI Act (Cth). Otherwise, access must generally be granted unless a document falls into a defined exemption or exclusion (ss 11A, 15(5)). See ‘Exemption provisions’, below.
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 by the Administrative Review Tribunal (ART) (s 57A) (see ‘Contacts’ at the end of this chapter).
Information Publication Scheme
The FoI Act (Cth) also requires government agencies to publish a range of information under the Information Publication Scheme (pt II).
The scheme aims to promote a pro-disclosure culture across government by requiring agencies to take an open and proactive approach to publishing information, rather than merely responding to individual requests for access to documents.
Section 8 of the FoI Act (Cth) sets out 10 classes of information to be published, 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)).
Agencies are also required 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 freedom of information 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 freedom of information access request is received (s 6C). This requirement applies only to ‘Commonwealth contracts’ entered into after 1 November 2010 (s 6C).
Commonwealth freedom of information 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 freedom of information and privacy, including:
- overseeing freedom of information in the Commonwealth;
- investigating complaints about the handling of freedom of information 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 freedom of information requests); and
- declaring applicants to be vexatious.