Freedom of information law

Where an agency or minister 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 (s 26 Freedom of Information Act 1982 (Cth) (‘FoI Act (Cth)’)).

If the applicant has requested that any charges be reduced or waived, the decision-maker must also give written reasons for the decision and tell the applicant about their rights to have the decision reviewed (s 29(8)–(9)). Reasons must also be given where an agency or minister refuses an applicant’s request for personal records to be amended or annotated (s 51D(3) FoI Act (Cth)).

In addition, where the decision-maker has relied on a conditional exemption, they must include in their written reasons the public interest factors they took into account in making their decision (s 26(1)(aa) FoI Act (Cth)).

An applicant who is denied access may apply for the decision to be reviewed by either the agency (internal review), usually by a different, more senior agency officer, or directly by the Australian Information Commissioner (‘AICommissioner’) (pts VI, VII FoI Act (Cth)). An application for review must be made in writing and within 30 days after the day the decision is notified to the applicant or, in the case of access review, 15 days after the day the access was given (ss 54B, 54S FoI Act (Cth)).

In the case of an internal review, the agency must make a review decision within 30 days (s 54C FoI Act (Cth)). If the applicant is not subsequently satisfied with the outcome of the internal review, they may seek to have the internal review decision reviewed by the AI Commissioner (s 54L(2)(b) FoI Act (Cth)). There is no fee for either the internal or AI Commissioner’s review.

The AI Commissioner has the power to affirm, vary or substitute a new decision for a freedom of information decision made by an agency or minister (s 55K(1) FoI Act (Cth)). The AI Commissioner may also decide not to review the decision in a number of circumstances (s 54W FoI Act (Cth)). For example, they may decide to refer the decision to the Administrative Appeals Tribunal (AAT) if they are ‘satisfied that the interests of the administration of the FoI Act (Cth) make it desirable’ (s 54W(b) FoI Act (Cth)).

If an applicant disagrees with the AI Commissioner’s review decision, they may lodge an appeal with the AAT for a full merits review (s 57A(1)(a) FoI Act (Cth)). A decision made by the AAT ‘has the same effect as a decision of the agency or minister’ (s 58(1) FoI Act (Cth)). The standard application fee for an AAT review is $932. Applicants may be eligible to pay a reduced fee of $100, if, for example, the applicant is receiving legal aid for their application, is receiving certain Centrelink benefits, or faces financial hardship by paying the full fee. Information about application fees for an AAT review is available on the AAT’s website.

An applicant may appeal a decision of the AI Commissioner to the Federal Court on a question of law (s 56(1) FoI Act (Cth)).

If an agency’s or minister’s document (to which access has been provided) contains personal information about a person, that person may apply for the amendment or annotation of any information considered to be incomplete, incorrect, out of date or misleading (s 48 FoI Act (Cth)).

Where an agency or minister refuses an application for amendment, they must enable the applicant to instead apply for their personal information to be annotated by adding a statement explaining their reasons for claiming that the information is incomplete, incorrect, out of date or misleading (ss 51, 51A FoI Act (Cth)). However, an agency is not required to add an annotation as requested if it considers the statement to be irrelevant, defamatory or unnecessarily voluminous (s 51B(2) FoI Act (Cth)).

There is no fee for either application. The right to amendment only applies to personal information that has been or is being used for an administrative purpose (s 50(1)(c) FoI Act (Cth)).

The amendment provisions under Part V of the FoI Act (Cth) operate alongside the relevant provisions in the Privacy Act 1988 (Cth).

The same rights of internal review, review by the AI Commissioner and appeal to the AAT apply where a request for amendment or annotation is refused.

There is no fee for asking to access documents. However, agencies and ministers can charge fees for processing requests to access documents (s 29 FoI Act (Cth)). These costs are set out in the Freedom of Information (Charges) Regulations 2019 (Cth) (‘FoI Regulations (Cth)’) and are summarised above.

Two important exceptions exist where no charges apply. First, where an applicant requests access to their own personal information, including income support information, no charge is payable (reg 7(1) FoI Regulations (Cth)). Second, an agency or minister cannot charge a fee if they don’t make a decision about an access request within the statutory time limits, unless they have an extension (regs 7(2), 7(3) FoI Regulations (Cth)).

Where an agency or minister decides that the applicant is to pay a charge in relation to their request for access to documents, the applicant is to be provided with an estimate of charges and how the charge is calculated (s 29(1)(b)). If the applicant does not accept the estimate, or does not seek to have it reviewed within 30 days, the freedom of information request is deemed to have been withdrawn (s 29(2) FoI Act (Cth)). Applicants can elect not to continue with the application after being advised that charges may apply.

Applicants can ask for charges to be reduced or waived at any time on any grounds. In considering the applicant’s request, the agency or minister must consider whether paying the charge would cause financial hardship and whether giving access to the document is in the public interest (s 29(5) FoI Act (Cth)). An agency or minister can still decide to impose a charge even though it would cause the applicant financial hardship or disclosure would be in the public interest. However, there is a right of internal review, review by the AI Commissioner and appeal to the AAT on the imposition or amount of the charge.