Commonwealth freedom of information legislation

Under FoI anyone can obtain information held by most government agencies except for exempt documents. Appeals are heard by the Australian Information Commissioner, then the AAT. Agencies must take an open approach to information. FoI documents are published in a disclosure log on agency websites. Contracted service providers are treated the same as government agencies.

Freedom of Information Act

The Freedom of Information Act 1982 (Cth) (“FoI Act (Cth)”) creates a legally enforceable right for any person (including legal persons such as corporations and trusts) to obtain information held by Australian Government ministers and most Australian Government agencies. Generally, access to such documents must be granted within 30 days unless the document falls into one of the exemptions or exclusions contained in the FoI Act (Cth) (s 11A).

There are several exemptions to the application of the FoI Act (Cth). For instance, certain specified agencies – such as national security agencies (listed in sch 2 pt I) – are not subject to the FoI Act (Cth) (s 7). Further, the FoI Act (Cth) only provides access to an “official document of a minister” (defined in s 4). This means that personal documents, documents of a party political nature and documents about a minister’s electorate affairs are not subject to release under the FoI Act (Cth).

It is not necessary for an applicant to have “standing” of the kind required to succeed with a request under the Administrative Decisions (Judicial Review) Act 1977 (Cth); i.e. an applicant need not demonstrate that their interests are adversely affected by a decision or determination. It is also unnecessary for the applicant to provide any reasons for seeking access to documents (s 11(2)).

If an applicant’s request is denied, they may apply for the decision to be reviewed by the Australian Information Commissioner (“AI Commissioner”) (s 54L) and subsequently to the Administrative Appeals Tribunal (AAT) (s 57A). (For the AI Commissioner’s and the AAT’s contact details, see “Contacts”.)

In circumstances where a review is sought, the onus is generally on the party claiming the application of an exemption to prove that the material ought to be withheld from release (ss 55D, 61).

Significant changes were made to federal freedom of information laws in 2010. The changes included:

the creation of the Office of the Australian Information Commissioner (OAIC) and two new statutory officer positions: the AI Commissioner, and the Freedom of Information Commissioner (“FoI Commissioner”);

the narrowing of freedom of information exemptions by creating a new category of conditionally exempt documents and introducing a new public interest test that applies to these documents (see ss 11A(5), 11B);

the creation of a new Information Publication Scheme (see below); and

the introduction of a revised structure for the review of decisions.

The AI Commissioner:

oversees freedom of information in the Commonwealth;

investigates complaints about the handling of freedom of information requests by agencies;

promotes awareness of the FoI Act (Cth);

issues guidelines;

undertakes merits review;

performs administrative duties (e.g. approving extensions of time for agencies to process freedom of information requests); and

declares applicants to be vexatious.

Of particular importance is the articulation of two further objectives in the legislation effected by section 3 of the FoI Act (Cth), namely that parliament intends the legislation to:

1 contribute to increasing public participation in government decision-making; and

2 increase recognition that information in the government’s possession is a national resource.

At the time of writing (1 July 2019), the Freedom of Information Legislation Amendment (Improving Access and Transparency) Bill 2018 (Cth) is before parliament. If passed, the most notable changes would be to:

allow FoI applicants to elect to have their matter go straight to the AAT and bypass the FoI Commissioner;

permit a FoI applicant to switch a review to the AAT, if the FoI Commissioner takes, or indicates they will take, more than 120 days to make a decision;

prevent agencies from publishing information released under FoI until at least 10 days after the applicant has received their copy of the information.

Information Publication Scheme

The amendments to the FoI Act (Cth) that commenced on 1 May 2011 vastly expanded the scope of information to be published by agencies through the creation of an Information Publication Scheme.

The purpose of these reforms is to promote a pro-disclosure culture across government and to build a stronger foundation for more openness and transparency in government. The reforms transformed the freedom of information framework from one that responds to individual requests for access to documents, to one that requires agencies to take an open and proactive approach to publishing information.

Section 8 of the FoI Act (Cth) sets out 10 classes of information to be published under the Information Publication Scheme, including an agency’s plan to comply with the FoI Act (Cth) (s 8(1)), and information about “the functions of the agency, including its decision-making powers and other powers affecting members of the public” (s 8(2)(c)).

There is also a requirement for agencies to publish documents that have been accessed following a request under section 15(2) of the FoI Act (Cth), subject to certain exceptions (s 11C). However, this requirement applies only for requests made after 1 May 2011. Publication is to take place within 10 working days of the documents being released to the freedom of information applicant (s 11C(6)). There is no rule about how long such documents are to remain public.

The documents are to be published in redacted form (i.e. edited to obscure information that cannot be disclosed) if applicable and are to include further relevant redactions to protect the personal information or business affairs of the FoI applicant (ss 11C, 22). All government agencies must publish this material on their websites on a page headed “disclosure log”.

Contracted service providers

In 2010, the coverage of the FoI Act (Cth) was extended to apply to documents held by contracted service providers that are providing services to the public on behalf of agencies.

Agencies are required to take contractual measures to ensure that documents held by a service provider relating to their performance under the contract are supplied to the agency if a freedom of information access request is received (s 6C). This requirement applies only to Commonwealth contracts entered into after 1 November 2010 (see s 6C).