Outcomes of requests and costs

 

Reasons for refusal must be given, and applicants denied access can request internal review, then review by the Information Commissioner (both free), then, for a fee, the AAT, and finally the Federal Court. Estimates of charges must be provided, and waivers can be sought. Individuals can have personal information amended.

Reasons for decisions

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 (s 29(8)–(9)). This requirement also applies where an agency or minister refuses an applicant’s request for personal records to be amended or annotated (s 51D).

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).

What can I do if I am denied access?

An applicant who is denied access may apply for the decision to be reviewed by the agency (internal review), usually by a different, more senior agency officer, or directly by the Information Commissioner. In the case of an internal review, the agency must make a review decision within 30 days (s 54C). If the applicant is not subsequently satisfied with the outcome of the internal review, they may seek to have the internal review decision reviewed by the Information Commissioner (s 54L(2)(b)). There is no fee for either the internal review or Information Commissioner’s review.

The Information Commissioner has the power to affirm, vary or substitute a new decision for a freedom of information decision made by an agency or minister (s 55K). The Information Commissioner may also decide not to review the decision in a number of circumstances (s 54W). For example, they may decide to refer the decision to the AAT 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 Information Commissioner’s review decision they may lodge an appeal with the AAT (s 57A(1)(a)) for a full merits review. A decision made by the AAT “has the same effect as a decision of the agency or minister” (s 58(1)). The application fee for an AAT review (except in certain limited circumstances) is $861. The AAT application fee is subject to increase every two years in accordance with a calculation based on the Consumer Price Index and is due to be increased from 1 July 2016. 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 by paying the full fee.

An applicant may appeal a decision of the Information Commissioner to the Federal Court on a question of law (s 56(1)).

Amending my personal information

If an agency’s or minister’s document (to which access has been provided) contains personal information about a person, that person may apply for the amendment or annotation of any information considered to be incomplete, incorrect, out of date or misleading (s 48). An applicant may also apply for their personal information to include a statement explaining their reasons for claiming that the information is incomplete, incorrect, out of date or misleading (s 51). However, an agency is not required to add an annotation as requested if it considers the statement to be irrelevant, defamatory or unnecessarily voluminous (s 51B(2)).

There is no fee for either application. The right to amendment only applies to personal information that has been or is being used for an administrative purpose. The amendment provisions under part V of the FOI Act (Cth) operate alongside the relevant provisions in the Privacy Act 1988 (Cth).

The same rights of internal review, review by the Information Commissioner and appeal to the AAT apply where the request for amendment or annotation is refused.

Fees and charges

Section 29 of the FOI Act (Cth) sets out a regime for agencies and ministers to impose processing charges for dealing with access to documents requests. There is no fee for making a request for access to documents but processing charges may apply. These costs are set out in the Freedom of Information (Charges) Regulations 1982 (Cth) and are summarised below.

Fees and charges: Freedom of Information Act 1982 (Cth)

Application fee

For request for access

Nil

For application for internal review

Nil

Processing charges

Search and retrieval, per hour

$15.00

Decision-making time, per hour

First five hours: nil; each subsequent hour: $20.00

Extraction and production of written documents from computers or other equipment

At cost

Reproduction of computer information onto computer disk

At cost

Transcripts of sound recordings, shorthand, etc., per page

$4.40

Photocopies of written documents, per page

$0.10

Copies, other than photocopies, of written documents, per page

$4.40

Replaying or copying disks, etc.

At cost

Supervised inspection, per half hour (or part thereof)

$6.25

Dispatch to an address at the applicant’s request

Cost of postage or delivery

Deposits may be charged (they are refundable only when charges are reduced or not imposed under s 29 of the Act) as follows:

where processing charges, as above, exceed $25 but do not exceed $100;

$20.00

where processing charges, as above, exceed $100.

25% of estimated charge

Two important exceptions exist where no charges apply. First, in the case of a request for the applicant’s own personal information, including income support information, no charge is payable.

Second, an agency or minister cannot impose an access charge if they fail to make a decision on an access request within the statutory time limits, unless they had obtained an extension of time.

Where an agency or minister decides that the applicant is to pay a charge in relation to their request for access to documents, the applicant is to be provided with an estimate of charges and how the charge is calculated. Should the applicant not accept the estimate or not seek to have it reviewed within 30 days, the freedom of information request is deemed to have been withdrawn (s 29(2)). An applicant can also decide not to continue with the application after being advised that charges may be made.

Applicants may seek that any charges be reduced or waived at any time on any grounds. In considering the applicant’s contention, the agency or minister must take into account whether payment of the charge would cause financial hardship and whether giving access to the document is in the public interest (s 29(5)). It is important that the applicant provides an explanation or evidence in support of a claim for waiver or reduction of charges. An agency can decide to impose a charge even though it would cause the applicant financial hardship or disclosure would be in the public interest. However, there is a right of internal review, review by the Information Commissioner and appeal to the AAT on the imposition or amount of the charge.