Commonwealth freedom of information: Access by others and complaints
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 Freedom of Information Act 1982 (Cth) (‘FoI Act (Cth)’)).
The FoI Act (Cth) provides for consultation by agencies or ministers with individuals before certain documents containing their personal information are released (s 27A FoI Act (Cth)). 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) FoI Act (Cth)).
The individual then has a right to internal review, review by the Australian Information Commissioner and appeal to the Administrative Appeals Tribunal to oppose the documents’ release (s 27A(6) FoI Act (Cth)). 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) FoI Act (Cth)).
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) FoI Act (Cth)). 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 FoI Act (Cth)). 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) FoI Act (Cth)). The individual then has a right to internal review, review by the Australian Information Commissioner and appeal to the Administrative Appeals Tribunal to oppose the documents’ release (s 27(7) FoI Act (Cth)). 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 Australian Information Commissioner (‘AI Commissioner‘) (s 70 FoI Act (Cth)). 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 FoI Act (Cth)). Before going to the AI Commissioner, the complainant should raise the complaint with the agency involved 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) FoI Act (Cth)). Another reason is if the complaint is frivolous or lacking in substance (s 73(e) FoI Act (Cth)). 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 (s 74 FoI Act (Cth)).
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 FoI Act (Cth)). This decision will include the investigation results, any recommendations the agency should implement and the reasons for the results and recommendations (s 86(2) FoI Act (Cth)). There is no fee for making a complaint.
