Commonwealth legislation

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Under FoI anyone can obtain information held by most government agencies except for exempt documents. Appeals are heard by the Australian Information Commissioner, then the AAT. Agencies must take an open approach to information. FoI documents are published in a disclosure log on agency websites. Contracted service providers are treated the same as government agencies.

Freedom of Information Act

The Freedom of Information Act 1982 (Cth) (“FOI Act (Cth)) creates a legally enforceable right for any person (including legal persons such as corporations and trusts) to obtain information held by Australian Government ministers and most Australian Government agencies. Generally, access to such documents must be granted within 30 days unless the document or part of the document falls into one of the exemptions or exclusions contained in the FOI Act (Cth) (s 11A).

There are a number of exemptions to the FOI Act’s (Cth) application. For instance, certain specified agencies, such as national security agencies (listed in sch 2 pt I FOI Act (Cth)) are not subject to the FOI Act (Cth). Further, the FOI Act (Cth) only provides access to an “official document of a minister” as defined in section 4. This means that personal documents, documents of a party political nature and documents about a Minister’s electorate affairs are not subject to release under the FOI Act (Cth).

It is not necessary for an applicant to have “standing” of the kind required to succeed with a request under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act (Cth)), i.e. an applicant need not demonstrate that their interests are adversely affected by a decision or determination. It is also unnecessary for the applicant to provide any reasons for seeking access to documents.

If an applicant’s request is denied, they may appeal the decision to the Australian Information Commissioner (“Information Commissioner) (ss 54L, 54M) and subsequently to the Administrative Appeals Tribunal (AAT) (s 57A). (Contact details for the Information Commissioner and the AAT are at the end of this chapter.) In circumstances where a review is sought, the onus is generally on the party claiming the application of an exemption to prove that the material ought to be withheld from release (ss 55D, 61).

Significant changes were made to federal freedom of information laws in 2010. The changes include:

the creation of the Office of the Australian Information Commissioner (OAIC) and two new statutory officer positions: the Information Commissioner, and the Freedom of Information Commissioner (FOI Commissioner);

the narrowing of freedom of information exemptions by creating a new category of conditionally exempt documents and introducing a new public interest test that applies to these documents (see s 11B);

the creation of a new Information Publication Scheme; and

the introduction of a revised structure for the review of decisions.

The Information Commissioner has the role of overseeing freedom of information in the Commonwealth, investigating complaints about the handling of freedom of information requests by agencies, promoting awareness of the FOI Act (Cth), issuing guidelines, undertaking merits review, performing administrative duties such as approving extensions of time for agencies to process freedom of information requests, and declaring applicants to be vexatious.

Of particular importance was the articulation of two further objectives in the legislation effected by section 3 of the FOI Act (Cth), namely:

1 the public must be informed if it is to participate and play the part required of it in a representative democracy; and

2 information in the possession of the government is a national resource.

Open publication scheme

Amendments to the FOI Act (Cth), which commenced on 1 May 2011, vastly expanded the scope of information to be published by agencies on the internet and otherwise through the creation of a new Information Publication Scheme. The explanatory memorandum states that the purpose of the reforms is to “promote a pro-disclosure culture across government and to build a stronger foundation for more openness in government”. The government also intended that the reforms transform the freedom of information framework from one that responds to individual requests for access to documents, to one that requires agencies to take an open approach to publishing information.

Section 8 sets out 10 classes of information to be published under an open publication scheme, including an agency’s compliance plan, and information about “the functions of the agency, including its decision-making powers and other powers affecting members of the public” (s 8(2)(c)).

There is also a requirement (s 11C) for agencies to publish documents that have been accessed following a request under section 15(2) of the FOI Act (Cth) – for requests made after 1 May 2011. Publication is to take place within 10 working days of the documents being released to the freedom of information applicant (s 11C(6)). There is no rule as to how long such documents are to remain public. The documents are to be published in redacted form if applicable and are to include further relevant redactions to protect the personal information or business affairs of the FOI applicant (s 22). All government agencies publish this material on their websites on a page headed “disclosure log”.

Contracted service providers

The coverage of the FOI Act (Cth) has been extended to apply to documents held by contracted service providers that are providing services to the public on behalf of agencies. Agencies are required to take contractual measures to ensure that documents held by a service provider relating to their performance are supplied to the agency if a freedom of information access request is received. This requirement applies to Commonwealth contracts entered into after 1 November 2010 (see s 6C).

Proposed changes to the OAIC

As part of the 2014 budget, the government announced plans to abolish the OAIC by 1 January 2015.

A bill to implement that measure was introduced into parliament on 2 October 2014. Under the Freedom of Information Amendment (New Arrangements) Bill 2014 (Cth) (“FOI New Arrangements Bill (Cth)”), the roles of the Information Commissioner and the FOI Commissioner would terminate. In the absence of the OAIC, the Privacy Act 1988 (Cth) would continue to be administered by the Privacy Commissioner, and the FOI Act (Cth) would be administered by the Attorney-General’s Department, the AAT and the Commonwealth Ombudsman. The Attorney-General’s Department would be responsible for advice, guidelines and annual reporting. Merits reviews of freedom of information applications would be determined by the AAT. The Commonwealth Ombudsman would handle complaints. The informational policy advice function that the OAIC currently performs would cease.

It is unclear whether there would be any changes to agencies’ current obligations to take into account the guidelines that the Information Commissioner presently issues about the FOI Act (Cth).

The FOI New Arrangements Bill (Cth) has stalled in the Senate and the OAIC will therefore remain operational for the time being. Although the OAIC continues to operate, the government has effectively wound down the organisation by reducing its budget and failing to make appointments to the two statutory offices in the OAIC: the Information Commissioner and the FOI Commissioner.

As at 1 July 2015, the OAIC continues to conduct Information Commissioner reviews and is generally conducting reviews within 30–60 days of receipt. In some circumstances, the OAIC is allowing applicants to apply directly to the AAT in order to ensure efficient and timely handling of reviews. The Commonwealth Ombudsman is handling all freedom of information complaints, and the Attorney-General’s Department is handling agency statistical reporting, advice and guidelines.