Commonwealth freedom of information: Managing my information
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A document containing another person’s personal information may be disclosed to an applicant where disclosure is not unreasonable and not contrary to public interest (s 47F).
The FoI Act (Cth) provides for consultation by agencies or ministers before certain documents containing an individual’s personal information are released to another person (s 27A). Where consultation is reasonably practicable, an agency must not grant access to these documents without first consulting with the individual concerned, unless it is clear that there could be no objection (e.g. the information is well known or publicly available). If the agency decides to release the documents, they must notify the individual concerned (s 27A(5)).
In certain cases, an applicant is asked to nominate a ‘qualified person’ (defined in FoI Act (Cth) s 47F(7) to cover medical practitioners, psychiatrists, psychologists, counsellors and social workers) to whom the agency or minister can provide information about the applicant, rather than to the applicant directly. This occurs where the agency or minister believes that disclosing the information to the applicant might be detrimental to the applicant’s physical or mental health or wellbeing (s 47F(4)(b)).
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Access to documents about the business or professional affairs of third parties may be limited where, for example, disclosing the information to the applicant ‘would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs’ (s 47G(1)). Where this criteria is met, the document is conditionally exempt.
The FoI Act (Cth) provides for consultation before an agency or minister releases documents that may be subject to this conditional exemption or the exemption for documents disclosing trade secrets (s 27). Where consultation is reasonably practicable, an agency must not grant access to these documents without first consulting the person or organisation concerned, unless it is clear that there could be no objection. If the agency or minister decides to release the documents, they must notify the organisation or proprietor concerned (s 27(6)).
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If an individual, organisation or proprietor wishes to oppose the release of documents, they have a right to seek internal review of the access grant decision, as well as review by the AI Commissioner or appeal to the ART (ss 54A, 54M, 57A). Access to these documents will not be given to the applicant until the review and appeal opportunities for the affected third party have run out.
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If an agency’s or minister’s document contains personal information about a person, that person may apply for the amendment or annotation of any information considered to be incomplete, incorrect, out of date or misleading (s 48).
Where an agency or minister refuses an application for amendment either wholly or in part, they must enable the applicant to instead apply for their personal information to be annotated by adding a statement explaining their reasons for claiming that the information is incomplete, incorrect, out of date or misleading (ss 51, 51A). However, an agency is not required to add an annotation as requested if it considers the statement to be irrelevant, defamatory or unnecessarily voluminous (s 51B(2)).
There is no fee for either application. The right to amendment only applies to personal information that has been or is being used for an administrative purpose (s 50(1)(c)).
The amendment provisions under Part V of the FoI Act (Cth) operate alongside the relevant provisions in the Privacy Act 1988 (Cth).
The same rights of internal review, review by the AI Commissioner and appeal to the ART apply where a request for amendment or annotation is refused.
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Complaints about how an applicant’s freedom of information request has been handled can be made at any time to the AI Commissioner (s 70). These complaints can be made in writing or by using an online freedom of information complaint form. The AI Commissioner also handles complaints about agency compliance with their other obligations under the FoI Act (Cth) (e.g. complaints relating to an agency’s Information Publication Scheme). The AI Commissioner cannot investigate a complaint about a minister.
Once a complaint is made, the AI Commissioner will decide whether or not to investigate the complaint after making preliminary inquiries (s 72). Before going to the AI Commissioner, the complainant should raise the complaint with the agency involved to give the agency an opportunity to deal with the complaint.
Failure to raise the complaint with the agency is one of the reasons the AI Commissioner may use to refuse to investigate the complaint (s 73(b)). Another reason is if the complaint is frivolous or lacking in substance (s 73(e)). If the AI Commissioner decides the complaint could be more effectively dealt with by the Commonwealth Ombudsman because, for example, it relates to the way in which the AI Commissioner dealt with a review, the complaint will be transferred (s 74).
The complainant and the agency are notified in writing of the AI Commissioner’s decision once made (s 86). This decision will include the investigation results, any recommendations the agency should implement and the reasons for the results and recommendations (s 86(2)). There is no fee for making a complaint.
Commonwealth freedom of information: Managing my information
Chapter: 12.3: Freedom of information law
Contributor: Louis Chiam, Partner; Julia Arrighi, Lawyer; and Steven Lee, Associate, Allens
Current as of: 1 September 2024
Law Handbook Page: 1026
Next Section: Victorian freedom of information legislation
