Freedom of information law

The right of access to documents in the possession of the Australian Government is provided in two ways under the Freedom of Information Act 1982 (Cth) (‘FoI Act (Cth)’):

1. Commonwealth agencies are required to publish information about their operations and their powers that affect the public, and their manuals and other decision-making documents (ss 8, 8A FoI Act (Cth)); and 
2. Commonwealth agencies must provide access to documents in their possession unless the documents are within an exception or exemption specified in the legislation (pts III, IV; schs 1, 2 FoI Act (Cth)).

An agency or minister has the discretion to give access to an exempt document where that access can be given lawfully. Section 3A of the FoI Act (Cth) encourages this approach.

The key terms, ‘agency’, ‘document’, ‘document of an agency’, ‘exempt document’ and ‘official document of a minister’ are defined in section 4(1) of the FoI Act (Cth). ‘Document’ is widely defined and includes any record of information but does not include ‘material maintained for reference purposes that is otherwise publicly available or cabinet notebooks’.

Subject to limited exceptions, where the applicant has requested access in a particular form, they must be given access in that form (s 20(2) FoI Act (Cth)).

Access to computer-stored material may, subject to the normal exemptions and exclusions, be given by providing the information on a computer disk. Alternatively, access may be given by providing a computer printout or by similar methods where this is preferred by the applicant (s 17 FoI Act (Cth)).

Documents must be supplied in response to a request with exempt matter deleted, provided that is practicable (s 22 FoI Act (Cth)).

To be accessible, the document must be in the possession of the agency or minister when the freedom of information application is received (see s 4 of the FoI Act (Cth) for the definitions of ‘document of an agency’ and ‘official document of a minister’).

To make effective use of freedom of information rights, applicants need to be able to identify the location of information in which they may have an interest.

Common types of personal information that Australian Government agencies hold about individuals that an applicant may wish to apply to access include:

• taxation records;
• records relating to benefits paid by Centrelink and the Department of Veterans’ Affairs;
• records relating to benefits paid by the Department of Veterans’ Affairs;
• migration records;
• passport records.

Individuals seeking to access documents containing other information, such as information about government policies and programs, can apply to the agency that they believe administers the policy or program of interest. Asking the minister or the freedom of information officer at the relevant agency about how the information might be obtained and looking at the agency website, in particular their section under the Information Publication Scheme, are good starting points.

To be valid, a freedom of information request must be in writing, specify that it is made under the FoI Act (Cth), provide sufficient information to identify the documents sought, provide details of how the applicant may be contacted, and be delivered to an agency at a specified address (including by email to the nominated address) (s 15 FoI Act (Cth)). There is no fee for making a request but processing charges may apply. See ‘Fees and charges’ in ‘Commonwealth freedom of information: Outcomes of requests and costs‘.

If an applicant needs help framing their request, they should contact the FoI officer of the relevant agency. 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. Section 15(4) of the FoI Act (Cth) imposes a duty on agencies to assist applicants to direct their freedom of information application to the correct agency. It is also possible that the request may be transferred to the most relevant agency once it has been made (s 16 FoI Act (Cth)).

An agency or minister is required to notify an applicant of their decision no later than 30 days after receiving the freedom of information request (s 15(5)(b) FoI Act (Cth)). The time period can be extended for a number of reasons. 

For instance, a further 30 days is allowed where the decision-maker needs to consult with a state or territory government, an individual or a business as required under the FoI Act (Cth), or with a foreign government or international organisation (ss 15, 26A, 27, 27A FoI Act (Cth)). 

Time may also be extended with the applicant’s agreement or with the approval of the Australian Information Commissioner if the Commissioner is satisfied that the request is particularly voluminous or complex (ss 15AA, 15AB FoI Act (Cth)).

Narrow grounds for deferring access are also provided (s 21 FoI Act (Cth)). A decision to defer access is reviewable on internal review, review by the Australian Information Commissioner and subsequent appeal to the Administrative Appeals Tribunal.

Documents or parts of documents can be withheld if they are exempt under a specific provision under Part IV of the FoI Act (Cth).

Part IV of the FoI Act (Cth) provides for two different kinds of exemptions:

1. exempt documents;
2. conditionally exempt documents.

Exempt documents

Exempt documents are documents to which no public interest test applies. If a document meets the criteria for one of the following categories, the relevant agency or minister is not required to give access to the document (s 11A(4) FoI Act (Cth)).

Exempt documents include:

• documents affecting national security, defence or international relations (s 33 FoI Act (Cth));
• cabinet documents (s 34);
• documents affecting law enforcement and protection of public safety (s 37);
• documents subject to legal professional privilege (s 42);
• documents containing material obtained in confidence (s 45);
• Parliamentary Budget Office documents (s 45A);
• documents the disclosure of which would be contempt of a parliament, court, tribunal or royal commission (s 46); and
• documents disclosing trade secrets or commercially valuable information (s 47).

Conditionally exempt documents

If a document meets the criteria for one of the following categories, the relevant agency or minister must give access to the document unless, in the circumstances, access to the document would, on balance, be contrary to the public interest (s 11A(5) FoI Act (Cth)). There is therefore a presumption in favour of access to conditionally exempt documents.

Conditionally exempt documents include documents relating to:

• Commonwealth–state relations (s 47B FoI Act (Cth));
• deliberative processes (s 47C);
• certain agency operations (s 47E);
• personal privacy (s 47F);
• business or professional affairs (s 47G);
• research conducted by specified agencies (s 47H);
• Australia’s economy (s 47J).

Section 11B sets out the factors that apply for the purpose of working out whether access to a conditionally exempt document would be contrary to the public interest. 

The factors favouring access to the document include whether the disclosure would:

• promote the objects of the FoI Act (Cth), including all the matters set out in sections 3 and 3A;
• inform debate on a matter of public importance;
• promote effective oversight of public expenditure; 
• allow a person to access their own personal information.

The following factors, among others, must not be taken into account:

• the seniority of the author of the document;
• that disclosure would be embarrassing to the Australian Government or cause a loss of confidence in the Australian Government; and
• that disclosure could result in confusion or unnecessary debate.

Under section 11B(5) of the FoI Act (Cth), agencies and ministers must comply with any guidelines issued by the AI Commissioner in relation to the public interest test.

An agency or minister is not bound to refuse access to a document that falls within an exempt category as the exemptions are ‘permissive’ (s 3A FoI Act (Cth)). More than one exemption may be claimed when refusing access (s 32 FoI Act (Cth)).

If the applicant is an employee or former employee of an agency that has established procedures to give employees and former employees access to their own personnel records and the applicant wishes to see their personnel records, they must first use those procedures.

If the applicant is dissatisfied with the result, or is not notified within 30 days of the result of their request, they may then make a request under the FoI Act (Cth) (see s 15A).