Fact Sheet 12
Freedom of Information Law in the ACT

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

What is Freedom of Information?
The Freedom of Information Act 1989 (ACT) (‘FOI Act’) creates a legally enforceable right of access to documents in the possession of ACT 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 and, in particular, the citizens of the Territory, to access to information in the possession of the Territory.” (s.3)

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?
The ACT Freedom of Information Act 1989 generally applies to ACT Government agencies and Ministers. Note that certain territory owned corporations or subsidiaries are exempt from the Act in relation to their commercial activities. (At the time of writing this exemption only applied to ACTAB. See below: “Are any documents exempt”).

If you send your request to the ‘wrong’ agency (one doesn’t have papers relating to the subject you requested), they may transfer it to the agency which has those documents.

When should you use FOI?
FOI is used to gain access to documents. This is defined broadly by the Legislation Act to include “any record of information” which would include e-mail messages, computer files, maps, photos and electronic records, sound recordings, video recordings as well as paper documents. It may also be relevant to request copies of Manuals that certain Departments use in order to make decisions on a day-to-day basis.

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 can be lodged. As an alternative you can approach your Member of the Legislative Assembly to ask a question in the Assembly or invoke other procedures of the Assembly.

How to make an FOI application
A person wishing to lodge an FOI application must apply in writing to the agency or Minister (s14 (1)) 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.
• It should also contain the applicant’s contact telephone number and address.(s14(2))
• If the applicant is having difficulties making the request, they should contact the relevant agency, which is obliged to assist them. (s14(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. (s14(4)

One option for seeking to obtain documents where you are not sure what is held by the Department is to first use the Act to request a Departmental file index, and then later to request documents contained in files that have subject headings which are relevant to your interests.

How much does an FOI application cost?

There is currently no application fee for FOI requests in the ACT, by reason of government policy. However there are situations in which processing charges may be incurred.

Application fees are waived and there is no charge for the first 10 hours of work by the agency involved, and no charge for the first 200 pages of photocopying.

However, if this policy changes, the Act itself provides that an applicant may be required to pay a processing charge which may be reduced or waived on certain grounds, which include hardship or the public interest. If an agency or Minister decides that the applicant must pay a charge, the agency or Minister shall notify the applicant of the charge and provide a statement explaining how the charge has been calculated. (s28)

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.

Specific exemptions apply in relation to particular documents or particular situations which would (or relate to)
• competitive commercial activities of territory owned corporations or a subsidiary (s6(1)),
• some requests concerning health records (s6(2)),
• documents predating 1977 (s11),
• damage relations between the ACT and the Commonwealth or other states (s34),
• certain executive documents (s35),
• internal working documents the disclosure of which would be contrary to the public interest,.)s36),
• affecting enforcement of the law and protection of public safety (s37) ,
• secrecy provisions of enactments apply (s38),
• a substantial adverse effect on financial or property interests of the Territory (s39),
• certain operations of agencies (s40),
• personal privacy (s41),
• legal professional privilege (s42),
• business affairs, such as trade secrets(s43),
• substantial adverse effect on the ACT’s economy (s44) ,
• containing material obtained in confidence (s45),
• disclosure of which would be contempt of Legislative Assembly or a court (s46),
• arising out of companies and securities legislation (s47),
• electoral rolls and related documents (s47A).

FOI requests can may also be refused if they are considered to ‘substantially and unreasonably divert the resources of the agency from its other operations’ or interfere with the performance of a Minister’s functions.(s23). This may occur if the request involves an excessive number of documents or poses difficulties in identifying or locating the documents. The answer is to reduce the scope of the request or better clarify the type of documents sought.

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. (s24)

A copy of some documents may be only provided after the exempt matter has been deleted from the copy (s21).

How quickly will your request be dealt with?
You should be notified by the agency or Minister that the request has been received within 14 days of its arrival. (s18) The agency or Minister must make a decision within 30 days, but this may be extended by 15 days if deemed appropriate.(s18, s31) In some circumstances the provision of access to the document may be deferred.(s20) Where the agency delays processing a request beyond the time set out in the Act, it may in some circumstances be “deemed” to have refused access to them and an application may be made to the AAT (s.61)

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. (s25)

As an applicant you have a right of appeal against decisions preventing you from accessing documents, decisions imposing a charge and delays in the decision making process. 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’). A request for internal review should usually be lodged within 28 days of the refusal being made and should be made in writing to the relevant agency or Minister. (s59)

If you are still dissatisfied you can seek an independent review of the decision by the Administrative Appeals Tribunal (AAT). (s60) In the AAT the onus is on the Department that refused the request for access to justify why the documents should be exempt from release (s.71). Also you can also make a complaint to the Ombudsman concerning the agency’s decision.(s54)

Contacts

AAT
ACT Administrative Appeals Tribunal
GPO Box 9955
CANBERRA ACT 2601
Ph: 6243 4611
www.courts.act.gov.au

Ombudsman
ACT Ombudsman
GPO Box 442
Canberra ACT 2601
Ph: 1300 362 072, 6276 0111
Email: ombudsman@ombudsman.gov.au
Website: http://act.ombudsman.gov.au

Other Resources

The Freedom of Information Act 1989

FOI Resources Home Page
(An excellent collection of resources, Faculty of Law, University of Tasmania)

FOI Links Page (Commonwealth Attorney-General's Department)
This useful page provides links to FOI pages of all State and Territory Departments and information commissioners.

Chief Minister's Media Release of 20 April 2005 about FOI Charges.
Mr Stanhope defends charges levied on the Canberra Times for access to information.

ACT Chief Minister's Department FOI Request form
Use this form if you want to make an FOI request on the CMD (but adapt it if you want to make FOI requests of other agencies).

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: The other 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, visit 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.