Commonwealth freedom of information: Outcomes of requests

2 Feb

Written By For Good Digital

Applications are more likely to succeed where:
- they are made to the correct agency;
- they make a specific request about what information they are seeking; and
- they exclude irrelevant information that may be captured by the request.
An agency or minister is required to notify an applicant of their decision no later than 30 days after receiving the freedom of information request (s 15(5)(b)). However, the time period can be extended for a number of reasons. For instance, a further 30 days is allowed where the decision-maker needs to consult with a state or territory government, an individual or a business as required under the Act, or with a foreign government or international organisation (ss 15, 26A, 27, 27A).
Time may also be extended with the applicant’s agreement or with the approval of the AI Commissioner if the AI Commissioner is satisfied that the request is particularly voluminous or complex (ss 15AA, 15AB).
Narrow grounds for deferring access are also provided (s 21). A decision to defer access is reviewable on internal review, review by the AI Commissioner and subsequent appeal to the ART.
Where the timeframe for a decision (including any extensions) lapses and the applicant has not been notified of a decision, the freedom of information request is deemed to have been refused (s 15AC).
Where an agency or minister refuses an applicant’s request for access to documents or defers access to documents, the decision-maker is required to give written reasons for the decision and to tell the applicant about their rights to have the decision reviewed (s 26). If the applicant has requested that any charges be reduced or waived, the decision-maker must also give written reasons for the decision and tell the applicant about their rights to have the decision reviewed (ss 29(8)–(9)).
Reasons must also be given where an agency or minister refuses an applicant’s request for personal records to be amended or annotated (s 51D(3)).
In addition, where the decision-maker has relied on a conditional exemption, they must include in their written reasons the public interest factors they took into account in making their decision (s 26(1)(aa)).
An applicant who is refused access may apply for the decision to be reviewed by either the agency (internal review), usually by a different and more senior agency officer, or directly by the AI Commissioner (pts VI, VII). An application for review of an access refusal decision must be made in writing and within 30 days after the day the decision is notified to the applicant (s 54B).
Agencies must decide internal reviews within 30 days (s 54C). If an applicant is not satisfied with the outcome, they may seek to have the internal review decision reviewed by the AI Commissioner (s 54L(2)(b)). An application for review by the AI Commissioner must be made within 60 days of the decision being notified to the applicant (s 54S(1)). There is no fee for either internal or AI Commissioner review.
The AI Commissioner has the power to affirm, vary or substitute a new decision for an freedom of information decision made by an agency or minister (s 55K(1)). The AI Commissioner may also decide not to review the decision in certain circumstances (s 54W). For example, they may decide to refer the decision to the ART if they are ‘satisfied that the interests of the administration of the FoI Act (Cth) make it desirable’ (s 54W(b)).
If an applicant disagrees with the AI Commissioner’s review decision, they may lodge an appeal with the ART for a full merits review (s 57A(1)(a)). A decision made by the ART ‘has the same effect as a decision of the agency or minister’ (s 58(1)). The standard application fee for an ART review is $1121. Applicants may be eligible to pay a reduced fee of $100, if, for example, the applicant is receiving legal aid for their application, is receiving certain Centrelink benefits, or faces financial hardship in paying the full fee. Information about application fees for an ART review is available at www.art.gov.au.
An applicant may appeal a decision of the AI Commissioner to the Federal Court on a question of law (s 56(1)).