Commonwealth freedom of information: 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?

A document containing another person’s personal information may be disclosed to an applicant where disclosure is not unreasonable and not contrary to public interest (s 47F).

The FoI Act (Cth) provides for consultation by agencies or ministers with individuals before certain documents containing their personal information are released (s 27A). Where consultation is reasonably 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, they must notify the individual concerned (s 27A(5)). The individual then has a right to internal review, review by the AI 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 is asked to nominate a “qualified person” (defined in s 47F(7) FoI Act (Cth)) to cover medical practitioners, psychiatrists, psychologists, counsellors and social workers) to whom the agency or minister can provide information about the applicant, rather than to the applicant directly. This occurs where the agency or minister believes that disclosing the information to the applicant might be detrimental to the applicant’s physical or mental health or wellbeing (s 47F(4)(b)).

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

Under the FoI Act (Cth), an applicant’s access to documents about the business or professional affairs of third parties may be limited where, for example, disclosing 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(1)). Where this criteria is met, the document is conditionally exempt.

The FoI Act (Cth) provides for consultation processes before an agency or minister releases documents that may be subject to this exemption or the exemption that provides for documents disclosing trade secrets (s 27). Where consultation is reasonably 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 or minister still decides to release the documents, they must notify the individual concerned (s 27(6)). The individual then has a right to internal review, review by the AI Commissioner and appeal to the AAT to oppose the documents’ release (s 27(7)). 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 AI Commissioner (s 70). These complaints can be made in writing or by using an online FoI complaint form. The AI 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 AI Commissioner cannot investigate a complaint about a minister.

Once a complaint is made, the AI Commissioner will decide whether or not to investigate the complaint after making preliminary inquiries (s 72). The complainant should raise the complaint with the agency involved before going to the AI 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 AI Commissioner may use to refuse to investigate the complaint (s 73(b)). Other reasons include if the complaint is frivolous or lacking in substance (s 73(e)). If the AI Commissioner decides the complaint could be more effectively dealt with by the ombudsman because, for example, it relates to the way in which the AI Commissioner dealt with a review, the complaint will be transferred accordingly (s 74).

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

The complainant and the agency are notified in writing of the AI Commissioner’s decision once made (s 86). This decision will include the investigation results, any recommendations the agency should implement and the reasons for the results and recommendations (s 86(2)). There is no fee for making a complaint.