This guide provides a brief outline of the South Australian Freedom of Information Act 1991. The guide explains what is meant by “freedom of information” and how the Act can be used by those seeking to obtain documents and other information held by South Australian State Government agencies, Local Councils and Universities. This guide relates mainly to South Australian State law.

What is Freedom of Information?

Freedom of information gives you a legally enforceable right of access to documents held by Governments.

The concept is based on the notion that the free flow of information from the Government to the public is an essential part of a democracy. Freedom of information promotes transparency and accountability throughout the Government process of decision making and encourages the public to participate in this process.

The South Australian Freedom of Information Act 1991 (FOI Act) allows you to:

  • request access to documents in the possession of a State Government agency, Local Council or University
  • request the amendment of documents that relate to you which are incomplete, incorrect, out-of-date or misleading
  • seek a review of a decision made by a State Government agency, Local Council or University.

It does not apply to private businesses or organisations.

The Commonwealth Government and the states and territories have separate legislation relating to freedom of information. If you think the information you want is held by these other Governments, you will need to contact them directly.

What parts of government are covered by FOI?

Only those bodies that are considered part of government are subject to FOI provisions. At the State level these are defined as “agencies” and include:

  • Ministers of the Crown
  • Boards and Ministers
  • Local Councils
  • Universities
  • Public Hospitals and Health Units
  • Regulatory Bodies
  • The South Australia Police.

Boards and Ministers Local Councils Universities Public Hospitals and Health Units Regulatory Bodies The South Australia Police.

Certain agencies are exempt from the FOI Act including Parliament, the Courts and tribunals, and a large number of financial and legal agencies. Additional FOI provisions of the Local Government Act apply to local councils, council committees and other authorities that carry out work on the council’s behalf.

What kinds of documents can I access?

The documents you wish to access must either be in the physical possession of the agency or the agency must have the ability to access it. If an application is directed to the wrong agency, then that agency should pass it on to the correct agency if it knows of the likely whereabouts of the document.

The documents available include paper based documents as well as computer files, plans, photographs, videos, and audio tapes.

The State Government holds many types of documents such as your school, health, welfare and criminal records, minutes and agendas, policy documents, Cabinet documents, research materials, and instruction and procedure manuals. State Government agencies are required to publish lists of the type of information in their possession. This includes the publication of an “information statement”.

Information statements include information on the structure and functions of the agency, how the functions of the agency affect members of the public, the various types of documents held by the agency which are available for access, and a description of how the public can obtain access or seek amendment to documents. Information statements are available for inspection and purchase. Copies can be found in the Government Gazette, in an agency’s Annual Report and on the agency’s website.

Can I access Cabinet documents?

Special provisions and processes apply for access to cabinet documents.

Cabinet documents older than 20 years can be sought by applying directly to the relevant agency and using the standard application form available on the State Records website at www.archives.sa.gov.au/foi/ forms.html.

Older Cabinet documents are transferred to State Records. Depending on the age of the Cabinet document, you may be able to view it at a State Records Research Centre. If not State Records staff will be able to assist you with advice or referral to the appropriate agency.

On 1 October 2009, the Government introduced a policy which allows access to Cabinet documents that are between 10 and 20 years old. This policy is referred to as the Ten Year Rule. You can apply for access to these Cabinet documents by using the Ten Year Rule application form also available on the State Records website.

When to use FOI?

Very often the information you are seeking can be obtained by simply asking for it.

Many government agencies actively promote their areas of work and make information freely available. In other cases the information such as annual reports, budget statements and electoral rolls, might already be published or in an agency library. It is not necessary to lodge an FOI application to see these. The agency’s information statement is a good place to start in your search for information.

How do you make an FOI Application?

Before making an FOI Application, it is best to discuss your application with the agency concerned prior to lodging a request. An FOI application must be made in writing and be lodged at the office of the relevant agency or council.

The government has produced a FOI application form which is applicable to all agencies and councils under the FOI Act. The application form can be downloaded from the State Records website http:// www.archives.sa.gov.au/foi/ or obtained from any of the applicable Government agencies.

You can alternatively send a letter to the agency. Your letter must:

  • specify that you are making an application under the Freedom of Information Act, 1991
  • include your name and an address in Australia
  • specify the documents you would like to access and the matter they concern
  • specify whether the documents contain information about your personal affairs
  • request the form of access to the document (eg do you wish to inspect the document or do you want a copy?)
  • include the application fee unless you are lodging an application to amend your personal records or you hold a concession card (proof will be required)
  • be sent directly to the agency that holds the information.

If you are unsure about what is required in the application, you should seek the advice and assistance of the agency. The agency is under a legal obligation to help you to clarify the scope of your inquiry.

The most common method of obtaining access to a document is to either inspect it or to be provided with a photocopy. If the document takes the form of an audio or video tape then arrangements can be made to hear or view it, or a written transcript can be made if the document can be reduced to writing.

How much does an FOI application cost?

Applications must be accompanied by a $28.75 application fee. Further charges may be levied based on the amount of time spent by the Agency dealing with the application and where copies or documents, audio tapes, photographs etc. are requested. In some cases, the agency may also require the lodgement of an advance deposit based on the estimate of the likely cost of the particular application.

If you hold a concession card, or are otherwise financially disadvantaged, all or part of the fees will be waived. Proof of your financial hardship will be required. Also, if a fee appears too expensive, an applicant can request review by the Ombudsman.

There is no fee for making an application to amend your personal records, or to make an application for access to Cabinet documents between 10 and 20 years old.

It is also worth considering asking your local (or any other) Member for Parliament to make the request on your behalf. Members of Parliament are entitled to a generous free FOI allowance and may be willing to assist in matters of public interest, such as the environment. Before going down this path, you should however consider whether you want to risk your matter becoming embroiled in party politics.

How long will it take to process my application?

Once a State Government agency, Local Council or University has received your written application it has 30 calendar days in which to process it. If the agency needs to extend the time limit for processing your request they will notify you. In the event that you are dissatisfied with the decision to extend the time limit you have the right to see an external review.

Refusal

There are four reasons a government agency may validly use to refuse access to a particular document. The most common is that the document is an “exempt document”.

Examples of documents that may be exempt include:

  • documents that would lead to an unreasonable disclosure of another person’s affairs
  • documents that contain trade secrets or information of commercial value
  • documents affecting law enforcement and public safety
  • documents of exempt agencies.

Some types of documents, whilst not exempt, may require a process of consultation to take place before being released to the public. The reason for this is that the information contained within them might affect other parties. In such cases the agency must take steps that are reasonably practicable to discover whether the party in question consents to their release.

Other reasons for refusal

Access can also be refused if the agency believes that the search required would be too time-consuming and would result in a substantial and unreasonable diversion of the agency’s resources. Generally, documents created before the FOI legislation was enacted (i.e. before 1 July 1987) can also be exempt. This does not apply to documents containing personal information about the applicant.

If a document is deemed to be exempt, the agency, council or university may decide to deny you access to all or part of that document. If access is refused you will be informed of the reasons why and advised of your appeal rights. The form for an Internal Review of an FOI determination can be accessed in hard form from the agency or downloaded from the State Records website.

More FOI information can be accessed by contacting State Records:
Tel: (08) 8204 8786 Email: [email protected]
Website: www.archives.sa.gov.au.

The Environmental Defenders Office (SA) inc, (EDO) is a non-profit community legal centre offering free advice to individuals and groups on all matters of environmental law. The EDO operates an advisory on Thursday evenings between 6-8PM at: 408 King William St Adelaide SA 5000 Fax +61 (08) 8410 3855. Appointments are necessary and must be made by ringing 8410 3833 or freecall 1800 337 566. It is not a substitute for proper legal advice. Important legal details have been omitted to provide a brief overview of this law. Contact the EDO or your solicitor for more detailed legal advice about your specific problem. This guide was funded by a grant from the Law Foundation of South Australia.