Access by others and complaints

 

Public interest and reasonableness apply to disclosure of another person’s personal documents, with notice and a right of appeal. A qualified person may receive information about someone with health or mental health issues. Conditional exemption may apply to business or professional documents or trade secrets, with notice and appeal processes. Complaints in writing or online are made to the Information Commissioner.

Who has access to my personal documents?

Disclosure of another person’s personal documents to an applicant may occur where to do so would not be unreasonable and disclosure would not be contrary to the public interest (s 47F).

The FOI Act (Cth) provides for consultation by agencies with individuals before certain documents containing their personal information are released (s 27A). Where consultation is practicable, an agency must not grant access to these documents without first consulting the individual concerned. If the agency still decides to release the documents, those consulted have a right to internal review, review by the Information Commissioner and appeal to the AAT to oppose the documents’ release (s 27A(6)). Access to these documents will not be given to the applicant until the review and appeal opportunities have run out.

In certain cases, an applicant may be asked to nominate a “qualified person” (defined in the FOI Act (Cth) to include a medical practitioner, psychiatrist, psychologist, counsellor and social worker) to whom the agency or minister can provide certain information about the applicant, rather than to the applicant directly. This scheme operates where the agency or minister believes that disclosure of the information to the applicant might be detrimental to the applicant’s physical or mental health or well-being (see s 47F).

Who has access to information about my business or professional affairs?

Under the FOI Act (Cth), an applicant’s access to documents relating to the business or professional affairs of third parties may be limited where, for example, disclosure of the information to the applicant “would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs” (s 47G). Where this criteria is satisfied, the document is conditionally exempt.

The FOI Act (Cth) provides for consultation processes before the agency releases documents that may be subject to this exemption or the exemption that provides for documents disclosing trade secrets (s 27). Where consultation is practicable, an agency may not grant access to these documents without first consulting the person or organisation concerned, unless it is clear that there could be no objection (e.g. the information is publicly available). If the agency still decides to release the documents, those consulted have a right to internal review, review by the Information Commissioner and appeal to the AAT to oppose the documents’ release. Access to these documents will not be given to the applicant until the review and appeal opportunities have run out.

Making a complaint

Complaints about how an applicant’s freedom of information request has been handled can be made at any time to the Information Commissioner (s 70). These complaints can be made in writing or by using an online FOI complaint form. The Information Commissioner also handles complaints about agency compliance with their other obligations under the FOI Act (Cth) (e.g. complaints relating to an agency’s Information Publication Scheme). The Information Commissioner cannot investigate a complaint about a minister.

Once a complaint is made, the Information Commissioner will decide whether or not to investigate the complaint after making preliminary inquiries. The complainant should raise the complaint with the agency involved before going to the Information Commissioner in order to give the agency an opportunity to deal with the complaint. Failure to raise the complaint with the agency is one of the reasons the Information Commissioner may use to refuse to investigate the complaint. Other reasons include if the complaint is frivolous or lacking in substance (s 73). If the Information Commissioner decides the complaint could be more effectively dealt with by the ombudsman, for example, a complaint about the way in which the Information Commissioner dealt with a review, the complaint will be transferred accordingly (s 74).

The Information Commissioner may use a number of powers to obtain information when conducting an investigation under the FOI Act (Cth).

There is no fee for making a complaint. The complainant and the agency are notified in writing of the Information Commissioner’s decision once made. This decision will include the investigation results, any recommendations the agency should implement and the reasons for the results and recommendations (s 86).