Fact Sheet 14 Using Commonwealth Freedom of Information Law

This Fact Sheet provides a brief overview of Freedom of Information (‘FOI’) laws that relate to information held by Commonwealth Government departments, Ministers and authorities.

What is Freedom of Information?

The Freedom of Information Act 1982 (Cth) ('FOI Act') creates a legally enforceable right of access to documents in the possession of Commonwealth Ministers and agencies.

FOI was introduced in order to increase transparency in government decision making and to improve accountability of government for administrative decision making. The Act states that its principal object is to “extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth” (s3).

Rights of access to documents under FOI are limited by exemptions considered necessary to protect essential public interests and sensitive personal and commercial information.

The FOI Act requires agencies to make information available concerning their functions and policies and procedures used in decisions making (s.8), so that members of the public are in a better position to accurately draft their requests.

Who do the FOI Laws apply to?

Certain agencies and documents are exempt from FOI requests. Exempt agencies include the Auditor General, the Aboriginal Land Councils and Land Trusts, Australian Government Solicitor, Australian Industry Development Corporation, the Australian Secret Intelligence Service, Australian Security Intelligence Organisation, National Workplace Relations Consultative Council, Inspector-General of Intelligence and Security and Office of National Assessments. (s7, Schedule 2) There are other agencies which are only exempt from the FOI law for certain documents. These include some documents of the Australian Broadcasting Corporation, Export Finance and Insurance Corporation and the commercial activities of many organizations. (See Schedule 2 of the FOI Act for the exhaustive list). As discussed below, there are also certain general categories of documents which cannot be accessed by FOI laws.

When should you use FOI?

FOI is used to gain access to documents. ‘Document’ is defined in the legislation to include (s4);
• any paper or other material on which there is writing or symbols or figures which have meaning
• maps, plans, photographs
• material from which sounds or images can be reproduced, with or without a device
• articles on which information is stored, whether mechanically or electronically
• any other record of information and any copy or reproduction of such a thing. Accordingly, files, reports, computer printouts, tapes or disks, microfiche, tape recordings, films or videotapes would be considered documents for the purposes of the FOI Act.

When you are seeking access to documents held by departments or a Minister, you should first approach the relevant department or Minister to determine whether the information required can be obtained without an FOI request. If the documents are not supplied, then an FOI application may be lodged.

How to make an FOI application

A person wishing to lodge an FOI application must apply in writing to the agency or Minister (s15) by either
1. filling in the form which is available from the relevant department, or
2. by writing a letter. Applicants should mention that they wish to apply for access under the FOI Act.

The request must
• include sufficient information to enable an officer of the agency or the Minister to identify the document.
• contain the applicant’s address (s15 (2(c))
• be accompanied by the required fee. (s15(2(e)) (See below)

If the applicant is having difficulties making the request, they should contact the relevant agency, which is obliged to assist them. (s15 (3)) If the request has been made to the wrong agency or Minister, the agency or Minister is expected to direct people to the appropriate body. (s15 (4))

One option for seeking to obtain documents where you are not sure what is held by the Department is to first obtain the Departmental file index which is usually posted on the Department’s internet website. Next you can request various categories of documents that may be contained in files with subject headings corresponding to your interests.

How much does an FOI application cost?

There is an application fee of $30 for FOI requests. There is a separate application fee of $40 for internal review of a decision. Processing fees may also apply. They may include:
• $20 per hour for staff to decide whether to grant a request;
• $15 per hour for staff to search for or retrieve the document;
• photocopying, at 10 cents per copy;
• the actual cost of postage incurred by the agency or Minister; and
• $6.25 per half-hour (or part thereof ) for staff to supervise if access is given to view documents.

If the agency decided to charge you, an estimate of the costs must be provided. (s29) If the processing fees are likely to exceed $25, a deposit may be required. You may apply for a waiver of the fees on grounds of financial hardship or public interest. (s30A) If the charge appears unreasonable, or the application fee is not waived where you think it should be, you may apply for an internal review of the decision. (See below)

Which documents are exempt from release?

The FOI Act exempts certain documents in general categories
1. in order to protect public interests, or
2. confidential matters, or
3. the private or business affairs of others.

Exempt documents are set out in the FOI Act. Specific exemptions apply in relation to
• documents, the provision of which would involve an “unreasonable disclosure” of personal information about any person other than the applicant. (s41)
• documents which would affect national security, defence or international relations. (s33)
• commercial material, the disclosure of which might diminish the value of the commercial information or unreasonably affect the lawful business or profession affairs of the person to which the information concerns. (s43)
• Cabinet documents which are produced for the official record of the Government in Cabinet; are produced for consideration of Cabinet; or otherwise evidence the deliberations of Cabinet. (s34)
• Documents protected by legal professional privilege. (s42)
• internal working documents, the disclosure of which would be contrary to the public interest. This exception is also subject to Ministerial Certificates, which enable a Minister to determine that it is contrary to the public interest that a document be released. (s36)
• documents which would potentially cause damage to relations with States if disclosed. This is also subject to Ministerial Certificates. (s33A)
• documents which would affect the enforcement of law and protection of public safety I disclosed. (s37)
• documents relating to research which, if disclosed, would be likely to unreasonably expose the agency to disadvantage. (s43A)
• the disclosure of documents which would adversely affect the national economy. (s44)
• documents containing material obtained in confidence. (s45)
• the disclosure of documents which would be contempt of Parliament or contempt of court. (s46)
• documents arising out of companies and securities legislation (s47)
• electoral rolls and related documents (s47A)

Agencies and Ministers are not required to provide information concerning the existence or non-existence of a document where that information would itself be considered an exempt document. (s25)

A copy of some documents may be only provided after the exempt matter has been deleted from the copy (s22).
Request for documents may also be refused where the provision of them would “substantially and unreasonably divert the resources of the agency from its other operations” or “substantially and unreasonably interfere with the performance of the Minister’s functions”. (s24)

How quickly will your request be dealt with?

The agency must inform you within 14 days of their receipt of your application. Within 30 days, the agency must tell you the decision concerning your request. This may be extended if the agency is required to consult a third party. If access is granted you will either be able to inspect the documents or you will be provided with copies.

How will the documents be given to me?
The agency can let you see the documents, or give you a copy. If you have a preference, you should notify the agency in your FOI request.

Appealing a Refusal to release documents

If the Minister or agency refuses the request to access the documents, the Minister or agency is required to provide you with the reasons for the decision and inform you of your appeal rights. (s26)

As an applicant you have a right of appeal against decisions preventing you from accessing documents and decisions imposing a charge. If the agency does not provide the reasons for the decision or there are delays, there may also be scope to appeal.

If a request has been denied you may ask for the agency or Minister to reconsider their initial decisions (‘internal review’). (s54) A request for internal review should usually be lodged within 30 days of the refusal being made and should be made in writing to the relevant agency or Minister. There is a charge of $40 for internal review.

If you are still dissatisfied you can seek an independent review of the decision by the Administrative Appeals Tribunal (AAT) within 60 days of being notified of the internal decision. (s55) The request should include the details of the decision you want reviewed, a copy of that decision and the reasons given to you by the agency. We recommend that you seek legal advice before applying to the AAT. External reviews by the AAT currently cost $606. If you are still dissatisfied you have a right of appeal to the Federal Court of Australia on an error of law. As this is likely to involve significant legal costs, it is recommended that you first seek legal advice before commencing action. As an alternative to the AAT review, you may complain to the Commonwealth Ombudsman concerning agency actions under the FOI Act. (s57) While the Ombudsman cannot overturn the decision, it can recommend that it be reconsidered.

It is difficult to challenge a Ministerial Certificate exempting a document from FOI laws. The AAT will only overturn a Ministerial Certificate if there are no reasonable grounds for the claim. The claim would have to be considered “fanciful, imaginary or contrived” to be successful.

The EDO ACT would like to thank EDO WA and EDO NSW for their help in compiling this Fact Sheet.

Contacts

The Ombudsman: National and ACT office
Ground Floor, 1 Farrell Place
Canberra City ACT 2600
Ph: 02 6276 0111
Fax: 02 6249 7829
Postal Address: GPO Box 442, Canberra ACT 2601
http://www.comb.gov.au/

Administrative Appeals Tribunal
4th Floor, Canberra House
40 Marcus Clarke Street
Canberra City ACT 2600
Ph: (02) 6243 4611 (metropolitan area), 1300 366 700 (country areas)
TTY : 1800 650 662
Translating and Interpreter Service: 13 14 50
Email: aatweb@aat.gov.au.
Fax: (02) 6247 0962
Postal Address: GPO Box 9955, Canberra ACT 2601
http://www.aat.gov.au

Federal Court of Australia
Commonwealth Law Courts Building
Childers Street
Canberra City ACT 2601
Ph: 02) 6267 0566
TTY: (02) 6267 0537
Fax: (02) 6267 0625
Email: actman@fedcourt.gov.au
http://www.fedcourt.gov.au/

Other Resources

The Freedom of Information Act 1982 (Cth)
FOI Resources Home Page
(An excellent collection of resources, Faculty of Law, University of Tasmania)
Further Reading
Kate Harrison & Anne Cossins (1993) Documents, Dossiers and the Inside Dope: A Practical Guide to Using Freedom of Information Law, Communications Law Centre, Sydney, Pub. Allen & Unwin, Sydney, 232pp.

Disclaimer

The ACT EDO Fact Sheets aim to give readers plain English background knowledge to planning and environmental decision making in the ACT. The law described in this Fact Sheet is current at March 2005.
The information contained in this publication is for general reference only. If you are contemplating legal action, you should seek legal advice on the specific facts of your case as soon as possible. These Fact Sheets cannot replace the need for professional legal advice in individual cases.
Duplication and reproduction of the information provided in any ACT EDO Fact Sheet is permitted with acknowledgment of the ACT EDO as source.
The ACT EDO Fact Sheets Project was carried out with the assistance of funds made available by the ACT Government under the ACT Environment Grants Program.

Other Fact Sheet Titles

Note: Some EDO fact sheet titles are unavailable at this time as they are being updated following legislative amendments and administrative changes. These fact sheets will be added as soon as possible.

Fact Sheet 1 Environmental and Planning Law in the ACT

Fact Sheet 2 National Capital Plan and the Territory Plan

Fact Sheet 3 The Development Approval Process

Fact Sheet 4 EIA Law in the ACT

Fact Sheet 5 Management of Public Lands

Fact Sheet 6 Heritage Law

Fact Sheet 7 Biodiversity Protection Law in the ACT

Fact Sheet 8 Tree Protection

Fact Sheet 9 Investigating Decision Making about the Environment

Fact Sheet 10 Challenging Decision Making about the Environment

Fact Sheet 11 Pollution Control Law in the ACT

Fact Sheet 12 Noise Pollution Control in the ACT

Fact Sheet 13 Freedom of Information Law in the ACT

Fact Sheet 14 Freedom of Information Law (Commonwealth)

Fact Sheet 15 Incorporating an Environmental Group in the ACT

For information about State environmental legislation, follow the links from the national EDO website.

Important: These fact sheets provide a summary of the law and are not intended to be comprehensive or to cover the specifics of any given situation. While every effort has been made to ensure the content is as accurate as possible, the EDO does not accept any responsibility for any loss or disadvantage resulting from reliance or use of this work. Readers are advised to seek professional legal advice in relation to specific legal questions.

Appendix: Senate Order for the Production of Indexed Lists of Departmental and Agency Files

On the 14 November 1994, the Senate agreed to a motion by Senator Harradine requiring all Australian Government departments and agencies to produce an indexed list of files every six months for tabling before parliament. The production of the list is intended to make the operations of government more transparent to the Australian public.
As part of the Governments ongoing commitment to give Australians greater access to relevant government information quickly and easily, the original Senate Order was amended in 1998 and now requires departments to also list these files on their Internet websites.
The lists are tabled twice a year, once in the Spring sittings and once in the Autumn sittings.
Spring sittings - files created in the preceding July to December
Autumn sitting - files created in the preceding January to June
Requirements of the Senate Order for the Production of Indexed Lists of Departmental and Agency Files.
Example: The Department of Prime Minister and Cabinet’s Indexed List of Files
The following text is reproduced from the PM&C website”
“In accordance with the Order, the department's list of files do not include:
files transferred to the National Archives of Australia
files essentially related the internal administration of the department (staff or personnel, accounts, training, or general administrative matters)
case related files (for example personal representation or dealing with the personal affairs of departmental or agency client), and
file titles whose national security classification is Confidential, Secret or Top Secret or their equivalent.
In addition, the department's lists do not include files whose titles would disclose the deliberations of Cabinet.
In accordance with the Order, some information in file titles has been deleted, such as:
commercially confidential information
identifiably personal information, and
any security classified information which is disclosed in or which could reasonably be established from a file title.
In response to the senate order requirement that the list be 'indexed', the files are arranged under the names of the current divisions and branches of the Department and then by file number.
File Lists
If you have any difficulties in accessing the information provided or need further assistance with alternative formats, please contact the department using the details provided on the Feedback page.
• Files created July - December 2004 - RTF 2.7MB | PDF 360KB
• Files created January - June 2004 - RTF 2.4MB | PDF 304KB
Departmental files may include approved acronyms and abbreviations for groups or topics currently in use within the department or for Division, Branch, Section and Unit names.”

http://www.dpmc.gov.au/accountability/filelist/index.cfm

Important: These fact sheets provide a summary of the law and are not intended to be comprehensive or to cover the specifics of any given situation. While every effort has been made to ensure the content is as accurate as possible, the EDO does not accept any responsibility for any loss or disadvantage resulting from reliance or use of this work. Readers are advised to seek professional legal advice in relation to specific legal questions.