FREEDOM OF INFORMATION

These laws are designed to increase transparency and accountability in government decision-making and activities, and to ‘extend as far as possible’ the right of the community to access information in the possession of government agencies (for example, public hospitals and prisons, police, welfare authorities, and ministerial authorities).

Freedom of information laws function on two interactive levels: firstly, by creating positive obligations on government to make certain information regarding their operations, rules and practices readily available as a matter of course to the public; and secondly, by creating a right and procedure to access to information in the possession of the government on application, subject to specific exemptions and exceptions, (that is, to access information that would not ordinarily be publicly available).

Freedom of information laws also allow individuals to apply for amendment of information held by government agencies about them that is inaccurate, misleading or out-of-date.

The ability to access information that affects the public – whether as individuals or collectively – has long been recognised as a basic human right on which functional democracy depends. Freedom of information laws can be particularly important where abuses of human rights by government are alleged, and work to empower individuals and communities in understanding and engaging effectively with the decisions and frameworks that affect them.

The Freedom of Information Amendment (Reform) Act 2010 (Cth) was enacted on 31 May 2010 and amends the FOI Act (Cth). Together with the Australian Information Commissioner Act 2010 (Cth) the amendments introduce a number of significant changes to federal freedom of information laws, mostly to commence from 1 November 2010. The changes include:

FOI charges will also be amended by the Freedom of Information (Fees and Charges) Regulations (Cth).

See The Law Handbook 2011 Chapter 21 for more details of these amendments.

A broad right of access is granted under freedom of information laws to access any documents, other than 'exempt' or 'excluded' documents, held by a government department or agency.

No motive or reason need be shown to make an application, as the right of access is based primarily on the public interest in open and accountable governance. However, having a clear idea of the materials sought and the purpose of application is important to making an effective claim (see below).

'Documents' for which access can be sought include a range of materials that record information, such as electronic mail, video and audio footage, and data stored on computers. Commonly access will be sought to documents such as personal files, internal policies or reports, or 'paper trails' relating to a particular incident or situation that affects members of the public. Accessible documents are extended to those in the 'possession' of the government agency (not just those documents they have generated). The concept of possession is further extended to include documents to which an immediate right of access can be claimed, known as 'constructive possession'.

An application for access to documents under freedom of information laws must be in writing and forwarded to the appropriate government department, agency or authority. Applications can be lodged online. Costs will attach to the application and processing of freedom of information requests unless a successful claim for waiver on grounds of financial hardship is granted.

The broad right of access to information created by the law is supported by an obligation on government to assist the community to exercise their rights. State and federal freedom of information websites and employees can provide useful assistance to understanding the laws and include sample application forms. Most government agencies subject to the laws will also have an internal freedom of information officer who can be contacted. It may be helpful to obtain legal advice prior to lodging an application from your local community legal centre.

Some government agencies are not subject to freedom of information laws. (Service provision agreements between government and private sector may sometimes be relevant.)

Equally, not all documents can be accessed under freedom of information laws. Some classes of documents are generally exempt, for example, cabinet documents and documents generated under some anti-terrorism legislation. Other documents may be withheld, in part or in whole, where specific competing public interests are said to apply.

Common instances will be where another's privacy or confidential information is involved, where national security or public safety could be compromised, or where it is claimed disclosure could unreasonably compromise the internal workings of a government department or agency. Where you are accessing documents personal to you, these exemptions or exceptions are much less likely to come into play.

As a legally enforceable right, an application under freedom of information laws is subject to external, independent review. A decision to refuse access, or to provide only partial access, will be made in writing and should clearly outline any avenues for appealing that decision.

Where an application has been made to a Commonwealth agency, a request can be made for internal review of the decision, following which an appeal may be lodged with the Administrative Appeals Tribunal. A complaint can also be lodged with Ombudsman concerning the actions taken by an agency in the exercise of powers or performance of functions under the Act.

Similarly, where an application has been made to a Victorian agency, a request can be made to the principal officer of the agency for internal review, following which an appeal may be lodged with the Victorian Civil and Administrative Tribunal.

Obtaining legal assistance to pursue any appeal is generally advisable. Costs may apply in relation to appeal processes. It is useful to make enquiries regarding any exemptions that may be available.

For more information on this subject refer to The Law Handbook chapter 21.6 Freedom of Information