New legislation was enacted on 31 May 2010. The Freedom of Information Amendment (Reform) Act 2010 (Cth) (which amends the FOI Act (Cth)) and the Australian Information Commissioner Act 2010 (Cth) introduced a number of significant changes to federal freedom of information laws, which commenced on 1 November 2010 (access) and 1 May 2011 (publication). The changes included:

Of particular importance was the articulation in section 3 FOI Act of two further objects for the legislation, namely:

Pro-active publication scheme

Amendments to the FOI Act which commenced on 1 May 2011 vastly expanded the scope of information to be published by agencies on the internet and otherwise, including documents accessed under the FOI Act (s11C). The government's stated aim is:

This message provides a statutory framework for the management and oversight of the on-going managed publication of relevant, up-to-date and accurate information. It is an aim of this measure that over time agencies will publish more information, reducing the need for access requests to be made.

Section 8 sets out 10 classes of information to be published under a pro-active publication scheme including the agency's compliance plan, documents about its operations and powers affecting the public and those used by an agency in making its decisions or recommendations with respect to the rights, privileges or benefits of people under any scheme administered by that agency.

There is a requirement (s11C) for agencies to publish documents which have been accessed following a request under s15(2) FOI Act made since 1 May 2011. The publication is to take place within 10 working days of their release to the FOI applicant. As yet, there is no rule as to how long the document is to remain public. The documents are to be published in redacted form and will include further relevant redactions to protect the personal information or business affairs of the FOI applicant.

The right of access to documents in the possession of the Commonwealth Government is provided in two ways:

An agency has a discretion to give access to an exempt document where that can lawfully be given. Section 3A FOI Act encourages this. The Federal Cabinet has said that exemption should not be claimed unless real harm would follow disclosure.

The key terms, "agency", "document", "document of an agency", "exempt document" and "official document of a Minister" are defined in the FOI Act (Cth) (s.4(1)). Document is widely defined and includes any record of information but does not include library material maintained for reference purposes or Cabinet notebooks. Access to computer stored material may, subject to the normal exemptions and exclusions, be given by providing the information on a computer tape or computer disk. Alternatively, access may be given by providing a computer print out or by similar methods where this is preferred by the applicant.

To be accessible, the document must be in the possession (including constructive possession) of the agency when the FOI application is received.

If you are an employee or former employee of an agency which has established procedures to give employees or former employees access to their own personnel records and you wish to see your own personnel records, you must first use those procedures. If you are dissatisfied with the result, or you are not notified within 30 days of the result of your request, you may then make a request under the FOI Act (Cth).

Documents or parts of documents can only be withheld if they are exempt under a specific provision in the FOI Act. Exemptions are based on what is essential to maintain the system of government and to protect the legitimate interests of third persons who deal with government. They are designed to provide a balance between the rights of the public to obtain access to government held documents and those protections. The rationale for the exemptions is that disclosure of the particular information would:

Exemptions fall into two categories: those to which a public interest test attaches (known as public interest conditional exemptions) and those which do not have a stand-alone public interest test. Where the public interest is relevant, the decision maker must first satisfy the conditional exemption criteria (for example, that the information in question constitutes personal information the disclosure of which would be unreasonable - section 47F) and then the public interest test articulated in section 11A(5). Under that test access to a document that meets a conditional exemption criteria must be granted "unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest".

See Part IV of the FOI Act (Cth).

However, an agency is not bound to refuse disclosure of a document which falls within an exempt category; that is, the exemptions are "permissive" (Section 3A FOI Act). More than one exemption may be claimed (s.32).

The combined effect of the general right of access and the exemption relating to personal privacy is normally, to limit access to personal documents held by government about an individual to that individual (s.41, especially s.41(2)). Individuals are entitled to seek access to personal documents held by an agency, regardless of the age of those documents (s.12(2)(a)). This right is used by many members of the community, particularly in areas such as social security and veterans' affairs.

However, disclosure to third parties may occur where to do so would not be unreasonable and disclosure would not be contrary to the public interest.

The FOI Act (Cth) provides for consultation by agencies with individuals before release of documents containing records of their personal information (s.27A). Where consultation is practicable, an agency must not grant access to that document 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 teh Information Commissioner and subsequent appeal to the Administrative Appeals Tribunal (AAT) to oppose release (s.59A).

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, marriage guidance counsellor and social worker) to whom information about the applicant can be provided, rather than the information being provided directly to the applicant (see ss.41(3) to 41(8)). 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.

If an agency has on its files personal information about you, you may apply to that agency for the amendment of that information if you consider it to be incomplete, incorrect, out of date or misleading. There is no fee for this application. The right to amendment is subject to the restriction that the agency holds your personal information for an administrative purpose. These amendment provisions overlap with provisions in the Privacy Act 1988.

Alternatively, you may apply for a note recording your views to be added to the information. The procedure is similar to that used for an application for documents under the FOI Act (Cth), and there is no application fee. You have the same rights of internal review, review by the Information Commissioner and appeal to the AAT if you are dissatisfied with the agency's decision.

An agency may decide not to amend your personal information as requested by you. If it makes this decision, it must take reasonable steps to enable you to apply for annotation of your personal information. It is not required to add an annotation requested by you if it considers the statement to be irrelevant, defamatory or unnecessarily voluminous.

Agencies are also required under the Privacy Act 1988 (Cth) to ensure that personal information is relevant, complete and not misleading and, subject to some qualifications including exemptions under the FOI Act (Cth), to give access to that information to the person concerned.

The combined effect of the general right of access and the exemption relating to business affairs etc. is normally to limit access to such records held by the government to the individual or organisation concerned where, for example, disclosure of the information to others would, or could, reasonably be expected to:

The FOI Act (Cth) provides for consultation by agencies with a person, organisation or undertaking before release of documents where the documents may be subject to this exemption (s.27). Where consultation is practicable, an agency may not grant access to that document without first consulting the person, organisation or undertaking concerned unless it is clear that there could be no objection eg. the information is publicly available. If the agency still decides to release the documents, those consulted have a right to internal review (s.54(1D)), review by the Information Commissioner and subsequent appeal to the AAT to oppose release (s.59).

To make effective use of freedom of information (FOI) rights, applicants need to have the means of identifying the location of information in which they may have an interest. The publication scheme described above will assist this identification and location.

Section 15(3) of the FOI Act (Cth) imposes a duty on agencies to take reasonable steps to assist applicants to make their requests comply with the requirements of the Act. The agency FOI Contact Officer will assist you in this regard.

Section 15(4) imposes a duty on agencies to assist applicants to direct their FOI application to the correct agency. The request or part of the request may be transferred to the most relevant agency (s16).

The first step in applying for release of information is to telephone the FOI Contact Officer at the agency which you believe holds the relevant documents. A list of Commonwealth FoI Contact Officers is available on the Department of the Prime Minister and Cabinet's FOI website at www.pmc.gov.au/foi. After the particulars of your request have been established, the FOI Contact Officer will advise you how best to proceed.

To be valid, an FOI request must be in writing, specify that it is made under the FOI Act, be accompanied by the $30 application fee (where required), provide sufficient information to identify the documents sought, and be delivered to an agency at a specified address (including email address) (section 15).

If you need help in framing your request, you should contact the FOI Contact Officer who will assist you.

The request must provide such information as is reasonably necessary to enable the agency to identify the document sought. If you have difficulties in suitably framing your request, you should contact the FoI Contact Officer, who will assist you.

Access is usually given by way of copies of documents either electronically or in hard copy form. A document will be supplied in response to a request with exempt matter deleted, provided that is practicable (s.22).

An applicant may also seek access by way of inspection of documents, either at the agency's premises or at any office of the National Archives of Australia. The office in Melbourne is:

Requests must be dealt with as soon as possible, with a maximum time limit of 30 days (s.15(6)), or 60 days if a person, business, or state government is required to be consulted. The agency may apply to the Information Commissioner for an extension of time.

Narrow grounds for deferring access are also provided (s.21). This decision is reviewable on internal review, review by the Information Commissioner and subsequent AAT appeal. This is a deferral, not a refusal.

Where an agency 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. If the applicant has requested remission of an application fee or a reduction or non-imposition of charges, the decision-maker must also give written reasons for the decision and tell the applicant about their rights to have the decision reviewed. This requirement also applies where an agency refuses an applicant's request for amendment or annotation of personal records (s.51D).

In addition, where the agency has relied on a conditional exemption the factors it took into account in deciding that disclosure would be contrary to public interest, must be detailed.

An individual denied access, or a consulted person, may apply for review of the decision by the agency (internal review) or review by the Information Commissioner. In the case of an internal review the agency must review the decision as if the application for review was a fresh request. The internal review is undertaken by a person other than the original decision-maker. If you are not satisfied with the outcome of the internal review, you may seek review by the Information Commissioner and following that decision, if you are still not satisfied, you may lodge an appeal with the AAT. The AAT then considers the merits of the decision made by the agency.

There is no application fee for internal review nor for review by the Information Commissioner. The application fee for AAT review (except where access is sought to certain pension or benefit documents) is $777 (from 1 July 2010). The AAT application fee is subject to increase on every second anniversary of 1 July 1996 in accordance with a calculation based on the Consumer Price Index.

General enquiries about the operation of the FOI Act (Cth) can be made to the Office of the Australian Information Commissioner (OAIC).

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The OAIC publishes a number of fact sheets that give more information on the operation of the FOI Act (Cth). These fact sheets, review decisions and other FoI information and material, are available on the OAIC's website (see: contact details above).