Freedom of Information

Contributor: Melinda Smith

Currency of information: March 2010

NOTE: This Chapter does not cover the new Commonwealth Office of the Information Commissioner

Overview

The concept of Freedom of Information refers to a citizen's right to obtain information from government affecting him or her.

In Australia there are two levels to the law of Freedom of Information, or 'FOI' as it is commonly called:

• There is a scheme applying to Commonwealth Government agencies under the Freedom of Information Act 1982 (Cth) (This is discussed at Freedom of Information at Commonwealth Level); and
• each State and Territory also has its own scheme applying to government agencies at that level. The ACT's scheme is outlined at Freedom of Information in the ACT. See also the discussion of FOI in the ACT Environmental Law Handbook.

Freedom of Information at Commonwealth Level

The Freedom of Information Act 1982 (Cth) (the Commonwealth FOI Act) is the main piece of legislation at federal level regulating citizens' access to information held by the Commonwealth Government.

The Commonwealth FOI Act applies only to the federal public sector. Information about the ACT's own local Freedom of Information Act is at Freedom of Information in the ACT.

Freedom of Information - Some Statistics

(the following is adapted from a press release on Senator John Faulkner's Website, dated 12 May 2009. See http://www.cabinetsecretary.gov.au/media/2009/mr_162009.html)

In 2008-09 Australia's Commonwealth Government agencies received 27,561 FOI access requests, slightly down on the previous year. The majority of requests were directed to Centrelink (10,275), the Department of Immigration and Citizenship (5,893) and the Department of Veterans' Affairs (5,970).

Eighty per cent of requests received by agencies were for personal information about the applicant, and almost 94 per cent of FOI requests finalised in the reporting period were granted in full or in part.

The FOI Annual report 2008-09 is available from the Department of Prime Minister and Cabinet's FOI website at www.dpmc.gov.au/foi/annual_reports.cfm. The website also contains a range of reference material to help people who want to make an FOI request.

The Commonwealth Freedom of Information Act

(The following is adapted from the Department of Prime Minister and Cabinet's FOI Questions and answers page at http://www.dpmc.gov.au/foi/faq.cfm)

The Freedom of Information Act 1982 (Cth) ('Commonwealth FOI Act') came into effect on 1 December 1982. It extends the right of every person to access to information in the possession of the Government of the Commonwealth and its authorities in two ways:

• it requires Commonwealth agencies (departments and authorities) to publish information about their operations and powers affecting members of the public as well as their manuals and other documents used in making decisions and recommendations affecting the public; and
• it requires agencies to provide access to documents in their possession unless the document is within an exception or exemption specified in the legislation.

This right of access exists regardless of whether the requestor is a party to a dispute or affected by a Commonwealth Government decision. In general, an applicant's identity or reasons for seeking access to documents are considerations irrelevant to an access decision (although there are some exceptions to this proposition). The right of access is however subject to a number of exemptions or exclusions contained in the Commonwealth FOI Act.

The Commonwealth FOI Act made a fundamental change to the emphasis of the law before 1 December 1982 in the following ways:

(i) The Commonwealth FOI Act creates a right of access. Before 1 December 1982, the release of information held by agencies was, as a rule, a matter of discretion and the agency was entitled to withhold information without having to justify its actions unless there was a requirement to disclose the information. Examples of the instances in which there are such requirements are as follows:

• subordinate legislation (regulations and by-laws) is required to be published;
• most agencies are required to publish annual reports;
• many appointments and the like are required to be published in the Gazette;
• reports of some advisory bodies must be tabled in parliament and so become published;
• under certain legislation (for example, the Administrative Decisions (Judicial Review) Act 1977 (Cth)) statements of reasons for decisions must be given on request by a person aggrieved by some decisions;
• subject to the application of the doctrine of public interest immunity, the courts have power to require documents to be produced in legal proceedings; and
• the Commonwealth Parliament has power to compel the giving of evidence and the production of documents. Royal Commissions have like powers.

(ii) The Commonwealth FOI Act does not require a person to establish any special interest or "need to know" before he or she is entitled to seek or be granted access.

(iii) The Commonwealth FOI Act sets out the circumstances in which access can be denied as a matter of discretion.

The Commonwealth FOI Act is not a code. It does not prevent or discourage the giving of access to any exempt document to which access can lawfully be given other than under the Commonwealth FOI Act. It is a minimum not a maximum standard.

The Commonwealth FOI Act also has two companion pieces of subordinate legislation:

• the Freedom of Information (Fees and Charges) Regulations; and
• the Freedom of Information (Miscellaneous Provisions) Regulations 1982.

What are my rights under the Commonwealth Freedom of Information Act?

A. Access to documents

The Commonwealth FOI Act gives you the legal right to:

• See documents held by Australian Government ministers, their departments and most statutory authorities (in this section these bodies are called agencies);
• Ask for information concerning you to be changed if it is incomplete, out of date, incorrect or misleading;
• Appeal against a decision not to grant access to a document or amend or annotate a personal record.

What is a 'document?'

"Document" is widely defined in the Commonwealth FOI Act to include:

(a) any of, or any part of, the following things:

(i) any paper or other material on which there is writing;

(ii) a map, plan, drawing or photograph;

(iii) any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;

(iv) any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device;

(v) any article on which information has been stored or recorded, either mechanically or electronically;

(vi) any other record of information; or

(b) any copy, reproduction or duplicate of such a thing; or

(c) any part of such a copy, reproduction or du-plicate;

but it does not include library material maintained for reference purposes or Cabinet notebooks.

Access to computer-stored material may, subject to the normal exemptions and exclusions, be given by providing the information on a computer tape or computer disk. Alternatively, access may be given by providing a computer print-out or by similar methods where this is preferred by the applicant.

B. Agencies to make certain information available

The Commonwealth FOI Act also requires agencies to make available detailed information about the:

• way they are organised;
• functions they have;
• kinds of decisions they make;
• arrangements they have for public involvement in their work;
• documents they hold and how you can see them; and
• rules and practices which are used in making decisions which affect you.

You can look at and, if you wish, buy copies of manuals and guidelines which agencies use in making decisions which affect you.

For more information on how you can see these documents talk to the FOI Contact Officer in the relevant agency. See the online list of FOI Contact Officers on the Department of Prime Minister and Cabinet's FOI website.

Employees and former employees of agencies

If you are an employee or former employee of an agency which has established procedures to allow employees or former employees access to their own personnel records and you wish to see your own personnel records, you must first use those procedures.

If you are dissatisfied with the result of using those procedures or you are not notified within 30 days of the outcome of the request for your records, you may then make a request under the FOI Act.

What other documents may I see?

The Act gives you a right to see:

• documents, no matter how old, containing personal information about yourself;
• documents, no older than 1 December 1977, relating to anything else (they can be older if you need them to understand another document you already have).

Documents held by State and ACT agencies

The States and the ACT have their own FOI legislation. Requests for documents held by State or ACT agencies should be directed to the appropriate State or ACT authority.

Police services in the ACT are provided by the Australian Federal Police. Inquiries concerning documents held by the police in the ACT should be directed to the Australian Federal Police.

See further Freedom of Information in the ACT.

Documents held by Australian Government agencies

For access to information held by Australian Government agencies you should contact the FOI Contact officer for that agency. See the online list of FOI Contact Officers on the Department of Prime Minister and Cabinet's FOI website.

A. Application of the Act

There are few Commonwealth departments and authorities to which the Commonwealth FOI Act does not apply:

• It does not apply to Commonwealth Parliament or Parliamentary departments;
• Some authorities (listed in Schedule 2 of the Commonwealth FOI Act) are specifically excluded from the operation of the Commonwealth FOI Act either totally or in respect of defined areas of their functions; and
• It applies to courts and tribunals only in respect of their administrative functions.

It applies to all other authorities.

The Commonwealth FOI Act applies to "official" documents in the possession of a minister (in other words, those that relate to the affairs of an authority or of a department of State). The legislation does not apply to documents relating to political party matters or to a minister in her or his capacity as a Member of Parliament.

How do I make an FOI request?

Identify the document you want and which agency has it. (Government agencies have special FOI officers who can assist you in making your request - see the online list of FOI Contact Officers on the Department of Prime Minister and Cabinet's FOI website).

Write the request. (Some agencies have special forms for this. You can also just write a letter.)

Give an address in Australia at which notices under the FOI Act may be sent to you.

Give as much information as you can about the document you want (for example, give a file number, a reference to a newspaper report about it or describe the subject matter in which you are interested).

Enclose the $30.00 application fee (in certain instances the fee is not required or can be remitted - see below). Note this fee will be completely abolished shortly - see [41.2.3.3] Summary of main changes proposed by the FOI Reform Bill at A. More information on proposed changes to FOI fees and charges.

Post or deliver your request to the agency. You find its address by using the current telephone directory or checking its website.

What must an agency do when it gets my request?

• Tell you within 14 days that it has received the request;
• Deal with it as soon as possible;
• Talk to you about any difficulties in dealing with it;
• As soon as possible, give you an estimate of the charges if any are applicable (see below); and
• Within 30 days, tell you the decision on giving you access. (Where an agency has to consult a third party, the agency may extend the time in which it is required to tell you its decision by another 30 days. Consultation is usually necessary where the document contains information about the third party.)

How much will it cost me?

A. Income support documents - exempt from charge

If your FOI request is for access to documents relating to your income support (for example, pensions, unemployment benefits, student allowances), or to certain benefits or allowances set out in the Freedom of Information (Fees and Charges) Regulations, generally no fees or charges are payable.

B. Other documents

Other FOI requests incur both application fees and processing charges - see further below.

In some circumstances a deposit may be required before the request is processed.

If you have difficulty paying the fees and charges, or believe they are excessive, you can:

• apply for remission (see below); or
• challenge the decision to charge that amount (see What FOI decisions can I appeal against? and What kinds of appeal do I have?).

Application Fees

As noted above, there is no application fee for FOI requests relating to income support documents.

For other FOI requests, there is an application fee of $30.00 for FOI requests (this fee will be abolished shortly - see Summary of main changes proposed by the FOI Reform Bill at A. More information on proposed changes to FOI fees and charges).

There is a separate application fee of $40.00 for internal review of a decision (this fee will be also abolished shortly - see Summary of main changes proposed by the FOI Reform Bill at A. More information on proposed changes to FOI fees and charges).

Processing charges

As noted above, there is no application fee for FOI requests relating to income support documents.

For other FOI requests, see the table below. Note that some processing charges are capped if the request is for your own personal information (see note below the table).

(Note that the fee structures outlined below are correct at time of writing but will change shortly - see Summary of main changes proposed by the FOI Reform Bill at A. More information on proposed changes to FOI fees and charges).

search and retrieval time - per hour*	$15.00
decision-making time - per hour*	$20.00
extraction and production of written documents from computers or other like equipment	actual cost incurred
reproduction of computer information onto magnetic data	actual cost incurred
transcripts of sound recordings, shorthand, etc. - per page	$4.40
photocopies of written documents - per page	$0.10
copies, other than photocopies, of written documents - per page	$4.40
replaying or copying films, tapes etc.	actual cost incurred
inspection - per half hour (or part thereof)	$6.25
despatch to an address other than an Information Access Office	cost of postage and delivery

* Requests for your own personal information may incur a maximum charge of two hours for search and retrieval time and a further two hours for decision-making time. However, full rates for the other items in the table apply.

Deposits

Deposits may be charged:

• where the processing charges (see table above) exceed $25.00 but do not exceed $100: $20.00.
• where the processing charges (see table above) exceed $100: 25 per cent of the preliminary assessment.

Where a deposit has been sought or a charge imposed, no further action need be taken by the agency until payment is received.

Remission

You can ask that fees be remitted (reduced or waived) on any grounds, including financial hardship and the public interest.

Where an agency decides that you are liable to pay a charge for access to a document, it must give you a written notice stating its preliminary assessment of the charge. If you do not respond to the notification (by agreeing or otherwise) within 30 days, the request is deemed to be withdrawn.

You may contend that the charge has been wrongly assessed, or should be reduced or not imposed. In deciding whether to reduce or not to impose a charge, the decision-maker must, amongst other things, take into account whether payment of the charge, or part of it, would cause you financial hardship and whether the giving of access to the documents is in the general public interest.

How will the documents be given to me?

The agency can let you see the documents, or give you a copy. In some cases another form may be more appropriate (for example, listening to a tape recording).

If copies are not sent to you, the agency will let you know how, when and where you can see them. This may be at the agency's office, the National Archives of Australia Information Access Office nearest to where you live, or another Australian Government agency's office nearest to where you live. For address details of the Information Access Office (Archives Reading Room) in the ACT, see Contacts, Links and Resources.

Should you have a preference, say so when making your FOI request. Generally, you will be given access in that form.

Special procedures may apply if you want to see information which concerns your physical or mental health:

• the minister or head of the agency concerned may decide to give it to an appropriate health care worker, social worker or marriage guidance counsellor (here called a 'qualified person') of your choice, rather than to you directly;
• this can be done where the minister or head of the agency thinks that giving it to you directly might prejudice your physical or mental health or well-being;
• you can appeal against the decision to give it to a qualified person rather than to you directly, but what that person tells you or shows you is a matter for his or her judgement.

Can I see all official documents?

No. The Act identifies certain types of documents which you may not be able to see (called exempt documents). These types of documents are those which the parliament believes should normally be kept confidential to protect essential public interests or the private or business affairs of others.

A. Exempt Documents

In certain circumstances, documents relating to the following categories (where their release could damage Government or third party interests or other public interests) are exempt:

• documents relating to national security, defence or international relations;
• documents relating to Commonwealth/State relations;
• Cabinet and Executive Council documents;
• deliberative process documents;
• documents relating to enforcement of the law and protection of public safety;
• documents to which secrecy provisions of other laws apply;
• documents relating to financial or property interests of the Commonwealth;
• documents relating to certain operations of agencies;
• documents containing personal information;
• documents subject to legal professional privilege;
• documents relating to business affairs and so on;
• documents relating to the national economy;
• documents containing material obtained in confidence;
• documents disclosure of which would be contempt of parliament or contempt of court; and
• certain documents arising out of companies and securities legislation.

Exemptions are to be claimed only where the relevant information is genuinely sensitive and real harm will be caused by its disclosure. They should not be claimed simply because they are technically available.

B. Refusal of access

If an agency decides not to give access to the document you asked for, it must identify the documents withheld, give you written reasons for the decision and advise you of your rights of appeal.

In most cases, an FOI request will be refused where it would lead to an unreasonable disclosure of someone else's personal information.

C. Accessing your own information

Where you want to see documents containing your own personal information, the agency may ask to see some proof of your identity.

Can I have documents about me corrected?

Yes, providing you have had lawful access to the documents and they have been, or are being, used by the agency concerned for an administrative purpose.

If, after seeing your documents, you believe the information they contain to be incomplete, incorrect, out of date or misleading, you have a legal right to ask that it be corrected, if one of these grounds is established.

You can ask for corrections to be made by amending the record or adding an appropriate annotation, or both.

Companies, incorporated associations and the like are not entitled to have records about their affairs corrected under the Commonwealth FOI Act.

A. How do I ask for correction of documents about me?

Simply write and ask. No application fee applies.

Identify what information is incomplete, incorrect, out of date or misleading.

Explain with as much detail as possible:

• what the facts are and what evidence there is to support them;
• what changes you want made.

Post or deliver your request to the agency which gave you access to your file or documents. Give your address for correspondence.

B. What must the agency do when it gets my request for amendment of personal records?

The agency must deal with your request as soon as practicable and tell you within 30 days what it has decided.

If it decides not to make the changes you asked for (or decides to make different ones), it must tell you why and advise you of your rights of appeal.

What FOI decisions can I appeal against?

• Decisions not letting you see what you want, when you want it, or in the form you want it.
• Decisions relating to remission of an application fee.
• Decisions imposing a charge to see what you want.
• Decisions in respect of the amount of the charge imposed upon you.
• Decisions refusing to change or annotate documents about you which you think are incomplete, incorrect, out of date or misleading.
• Decisions letting others see documents which you say would unreasonably disclose:
  • your personal information;
  • your lawful business or professional affairs;
  • lawful business, commercial or financial affairs of your firm.
• Decisions to give you access to documents about your physical or mental health through a qualified person and not directly to you.

What kinds of appeal do I have?

You can:

• require the agency to reconsider its decision ('internal review');
• seek an independent review of the decision by the Commonwealth Administrative Appeals Tribunal ('AAT review'); and
• complain to the Commonwealth Ombudsman about the agency's decision or action ('Ombudsman review').

You also have a legal right to appeal if the agency does not tell you what decisions have been made on your request or delays telling you.

A. Internal review

You can ask the agency to reconsider its decision, as long as it was not made by the minister or agency head concerned.

Generally, you must apply for internal review within 30 days of being told of the decision, but you can ask for extra time.

Simply write to the agency, enclosing the $40.00 application fee (this fee will be abolished shortly - see [41.2.3.3] Summary of main changes proposed by the FOI Reform Bill at A. More information on proposed changes to FOI fees and charges) and ask for internal review. Some agencies have a special form, but you can just write a letter if you prefer. It will help if you say why you think the decision should be changed or what aspects of the decision are of concern to you.

Someone other than the person who made the first decision will then make a fresh decision.

You will be given the new decision within 30 days and written reasons if access or amendment is refused.

You can then appeal to the Commonwealth Administrative Appeals Tribunal (AAT) or complain to the Commonwealth Ombudsman if you are still dissatisfied with the decision given.

B. AAT review

The Commonwealth Administrative Appeals Tribunal (AAT) is an independent body responsible for reviewing administrative decisions by agencies. It decides whether the decision made on your FOI request was right. See Administrative Appeals Tribunal for more information.

In almost all cases, the AAT can change the agency's decision.

Before 7 October 2009, in special cases where a "conclusive certificate" had been issued, the AAT could only determine whether reasonable grounds existed for certain claims made in the certificate. It was then up to the minister to decide whether access should be given. However as of 7 October 2009 it is no longer possible to issue conclusive certificates under the Commonwealth FOI Act, and all existing certificates are effectively revoked - see Removal of conclusive certificates.

You can appeal to the AAT if:

• your request was originally decided by a minister or agency head;
• you are unhappy with an internal review decision;
• there has been agency delay (see 'What about delays?' below).

The AAT will tell you when and where your case will be heard, who will be there, what will happen, what you should bring with you, what happens at the end of the hearing and other things you should know.

Generally, you must apply for AAT review within 60 days of being told the decision that you are unhappy with, and enclose the AAT application fee. (If your application is against another person being given access to documents containing information about you, you must apply within 30 days.)

You cannot appeal to the AAT if:

• internal review was possible, but you did not ask for it (unless you are appealing against another person being given access to documents containing information about you or your business affairs); or
• you have complained to the Ombudsman, but have not yet received the Ombudsman's report.

If you think the AAT has made a mistake of law in its decision, you can appeal to the Federal Court.

C. Ombudsman review

The Commonwealth Ombudsman has power to investigate agency actions under the Commonwealth FOI Act, including decisions, delays, and refusal or failure to act.

The Ombudsman can review FOI decisions to make sure they were made in a fair and proper way. The Ombudsman can't change the decision, but can recommend that this be done.

Before complaining to the Ombudsman, first try to solve your problem with the agency. Get in touch with the FOI Contact Officer in the agency. Explain your point of view clearly and ask for the action or decision concerned to be reconsidered. The Ombudsman usually won't investigate until internal review has occurred.

If you complain to the Ombudsman, you can't appeal to the AAT until you have received the Ombudsman's report on your complaint.

D. Judicial review

As well as hearing appeals from the AAT, the Federal Court can review the original decision concerning an FOI request, but it usually won't do so if you could appeal to the AAT first.

In this process, called judicial review, the Court decides whether the decision or action taken by the agency was lawful. If it decides it was not, the agency usually makes a new decision taking account of any directions by the Court.

However, the Court can't change the decision as the AAT can. Because the procedures may be complex and could be very expensive, you should not take an appeal to the Court or seek judicial review without first getting legal advice.

What about delays?

Agencies must tell you their decision within:

• 30 days, in the case of a request to see a document;
• 30 days, in the case of a request to amend or annotate personal records about you;
• 30 days, in the case of a request for internal review;
• 30 days, where you have lodged a contention that a charge should be reduced, or not imposed, or that an application fee should be remitted.

If they do not, you can appeal to the AAT. In some circumstances an extension of time can be claimed by the agency, so it is advisable to check with it before lodging an appeal. The FOI Contact Officer should advise you of likely delays which may occur in processing your request.

What will it cost me to appeal?

No fees are payable for Ombudsman review.

You will have to pay for your own legal representation (unless you represent yourself), witnesses expenses, and other costs connected with your AAT or Federal Court case unless:

• you are given legal aid; or
• your case is successful, or substantially successful, and the Commonwealth pays them by order of the Federal Court or recommendation of the AAT.

If your AAT case is unsuccessful, you won't have to pay the agency's costs (but you may have to if your Federal Court case is unsuccessful).

Further information

For detailed information on FOI matters in individual Government agencies, speak first to the agency's FOI contact officer. In most cases, you will be able to get in touch through the agency's office nearest to where you live. You can find the address and telephone number in the telephone directory or by checking their website. See also the online list of FOI Contact Officers on the Department of Prime Minister and Cabinet's FOI website.

The Guidelines used by agencies to make decisions about FOI requests are available on the Department of Prime Minister and Cabinet's website.

For further information about complaining to the Commonwealth Ombudsman or seeking AAT review, get in touch with the Ombudsman's representative or AAT Registry in your nearest capital city. The addresses and telephone numbers are in the telephone directory. Contact details for the AAT and the Commonwealth Ombudsman are also provided at [41.4] Contacts, Links and Resources.

Commonwealth Freedom of Information Reform

On 22 July 2008 the Commonwealth Government announced its intention to reform the Commonwealth FOI Act. The general aim of the reforms is to encourage more openness in government. Further information is available from the Department of Prime Minister and Cabinet's FOI Reform page and the Cabinet Secretary's website.

Removal of conclusive certificates

The Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 (Cth) commenced on 7 October 2009. This Act:

• repealed the power to issue conclusive certificates in the Commonwealth FOI Act; and
• effectively revoked all existing conclusive certificates (if a new request is made in respect of a document which formerly had a conclusive certificate attached, the conclusive certificate is revoked on and from the date of the request).

You can view the Act at the ComLaw website.

Proposed new Office of the Information Commissioner

The Government introduced the Information Commissioner Bill 2009 ('the Information Commissioner Bill') into the Commonwealth Parliament on 26 November 2009. The Bill has not yet become law - it was referred to the Senate Finance and Public Administration Committee, which published its report on the Bill on 16 March 2010.

If the Information Commissioner Bill is passed in its current form, the Office will be a new statutory agency within the Prime Minister and Cabinet portfolio, supporting two new independent statutory office holders - the Information Commissioner and the Freedom of Information Commissioner. The Privacy Commissioner will also be incorporated in the new Office, bringing the functions of information privacy protection and FOI together in the new agency.

The Information Commissioner will head the new agency.

The Information Commissioner and FOI Commissioner will be responsible for promoting a culture of disclosure in Government agencies.

The Information Commissioner will also be responsible for advising the Government on broader information management issues with a view to ensuring a more coordinated development of government information policy.

The FOI Commissioner will be responsible for FOI functions, which include reviewing FOI decisions and overseeing the new Information Publication Scheme.

On 26 February 2010 the Government announced the appointment of Professor John McMillan AO as the Information Commissioner Designate. Professor McMillan will be responsible for ensuring the Office of the Information Commissioner is fully operational as soon as practicable after passage of the Government's FOI reform Bills through the parliament. It is proposed that the Office of the Information Commissioner will commence operations in early 2010.

Summary of main changes proposed by the FOI Reform Bill

The Commonwealth Government introduced the Freedom of Information Amendment (Reform) Bill 2009 ('the FOI Reform Bill') into parliament on 26 November 2009 (along with the Information Commissioner Bill mentioned above). The FOI Reform Bill is not yet law - it too was referred to the Senate Finance and Public Administration Committee, which published its report on the Bill on 16 March 2010.

The FOI Reform Bill proposes to amend the Freedom of Information Act 1982 to:

• establish a statutory framework for a publication scheme for certain Commonwealth agencies;
• remove fees for applications under the Act (see below at A. More information on proposed changes to FOI fees and charges);
• enable the new Information Commissioner to extend time periods for processing requests in certain cases;
• provide for consultation processes when responding to onerous requests;
• provide that documents held by certain contracted service providers are subject to the Act;
• limit access to certain intelligence agency information and documents of the Department of Defence;
• amend exemption provisions;
• provide for a public interest test; and
• provide that the Information Commissioner has: a merits review and an investigatory function; and the power to declare a person to be a vexatious applicant.

A. More information on proposed changes to FOI fees and charges

The Commonwealth Government proposes to reform FOI fees and charges as follows:

• no application fees (including for internal review) will apply to access requests;
• no charges will apply to applicants seeking access to their own personal information under the FOI Act;
• for all other applications, the first hour of decision-making time will be free (except for journalists and not-for-profit community groups where the first five hours of decision-making time will be free); and
• applications not decided within the statutory time frame will be processed free of charge.

Some of these changes will require amendment of the Freedom of Information (Fees and Charges) Regulations 1982 following passage of the FOI Reform Bill through the Commonwealth Parliament.

The Government also announced (on 24 March 2009) that the new Information Commissioner will be requested to undertake a comprehensive review of charges within 12 months of his or her appointment.

Freedom of Information in the Act

(the following is adapted from the ACT Chief Minister's Department's FOI Information Sheet, available at www.cmd.act.gov.au/publications).

The ACT Freedom of Information Act

Briefly, the Freedom of Information Act 1989 (ACT) ('the ACT FOI Act') gives you the legal right to:

• see documents (including those about your personal affairs) held by ACT ministers, their departments and some statutory authorities;
• ask for information concerning you to be changed if it is incomplete, out of date, incorrect or misleading; and
• appeal against a decision not to grant access to a document or amend or notate a personal record.

The ACT FOI Act also requires agencies to make available detailed information about the:

• way they are organised;
• functions they administer;
• kinds of decisions they make;
• arrangements they have for public involvement in their work;
• documents they hold and how you can see them; and
• rules and practices which are used in making decisions which affect you.

You can look at and, if you wish, buy copies of manuals (or parts thereof) and guidelines which agencies use in making decisions which affect you.

For more information on how you can see these documents talk to the relevant agency's FOI Coordinator, who will deal with your request or make an appointment to discuss your request.

What Other Documents can I See?

The ACT FOI Act gives you a right to see:

• documents, no matter how old, relating to your personal affairs; and
• documents created after 1 December 1977 relating to anything else (they can be older if you need them to understand another document you already have).

Documents include files, reports, computer printouts, maps, plans, photographs, tape recordings, films or videotapes.

Before Lodging an FOI Request

Each ACT Government agency is responsible for responding to FOI requests that relate to their functions or roles. Before making a request for access to documents you should first approach the agency you think may hold the documents relevant to your request. Each agency has FOI officers who can assist you in making your request.

Many documents, particularly if they relate to your personal affairs, may be given directly to you without the need to request them under the ACT FOI Act.

Sometimes the documents you are seeking may be available to you upon payment of a fee. If that is the case you cannot obtain the documents through the ACT FOI Act.

Bear in mind that police services in the ACT are provided by the Australian Federal Police, so inquiries concerning documents held by the police in the ACT should be directed to the Australian Federal Police.

How do I Make an FOI Request?

Identify the document(s) you want.

You can write a letter or fill in the form which is available on the agency's website requesting the documents - please remember to mention that you wish to apply for access under the ACT FOI Act.

Give as much information as you can about the document you want (for example the date the documents were created, or describe in detail the subject matter in which you are interested).

Please supply a contact telephone number.

Post or deliver your request to the FOI coordinator for the relevant agency.

For example, FOI requests for the ACT Chief Minister's Department can be sent to the following address:

The FOI Coordinator, Chief Minister's Department, GPO Box 158, CANBERRA ACT 2601

...or faxed to: (02) 6207 5886

...¦or delivered to:

The FOI Coordinator, Level 2, Canberra Nara Centre, 1 Constitution Ave, CANBERRA ACT 2600.

What must the Agency do when it gets my Request?

The relevant agency must:

• tell you within 14 days that it has received the request;
• deal with it as soon as possible;
• talk to you about any difficulties in dealing with it;
• as soon as possible, give you an estimate of the charges if any are applicable (see [41.3.6] How much will it cost me?); and
• within 30 days tell you the decision on giving you access. Where documents contain information about a third party's personal or business affairs, the agency has to consult with the third party. In these cases the agency may extend by another 30 days the time in which it is required to provide you with its decision on those documents being consulted upon.

How Much will it Cost me?

Application Fees

There is no application fee for FOI requests.

Processing charges

Processing charges may apply for requests. In order to minimise any charges, please consult with the FOI Coordinator to be sure that you are requesting only the documents you really need.

There are no charges for the first 10 hours spent on locating documents. After 10 hours, the charge for locating documents is $15.00 per hour.

The charge for decision-making and consultation time is $20.00 per hour.

There are charges in relation to the provision of access (for example, $0.20c per photocopy after the first 200 pages; $6.25 per hour supervised inspection; dispatch; and rates for services such as tape transcription or computer output).

Remissions

If you are advised that charges will be imposed, you are able to seek the remission of processing charges on the grounds of personal affairs, financial hardship or public interest.

Deposits

Where an estimated charge exceeds $100, a 25 per cent deposit may be required. Where a deposit has been sought or a charge notified, no further action need be taken, nor access given, until payment is received. Once paid, a deposit is not refunded if you choose not to pursue the matter to finality.

How will the Documents be Given to me?

The agency can let you see the documents, or give you a copy. In some cases another form may be more appropriate (for example, listening to a tape recording). If copies are not sent to you, the agency will let you know how, when and where you can see them.

Should you have a preference, say so when making your FOI application. Generally you will be given access in the form requested.

Special procedures may apply if you want to see information that concerns your physical or mental health. The minister or the chief executive of the agency may decide to give the information to a doctor of your choice rather than to you directly. However this can only be done where the minister or chief executive thinks that giving it to you directly might prejudice your physical or mental health or well-being. This decision is appealable.Can I See All Official Documents?

No. The ACT FOI Act sets out certain types of documents which you may not be able to see (called exempt documents). Exemptions are generally used to protect essential public interests, confidential matters or the private or business affairs of others.

In most cases where an FOI request would lead to an unreasonable disclosure of someone else's personal affairs, it will be refused.

If a request would unreasonably divert the agency's resources from its normal functions, access may be refused.

Where you want to see documents containing information about your own personal affairs, the agency may ask to see some proof of your identity.

If the agency decides not to give you access to the document you asked for, it must give you written reasons for the decision and advise you of your rights of appeal.

Deletions

It is important to understand that the ACT FOI Act provides for the granting of access to documents that contain deletions. If, for instance, documents contain any identifying information in relation to a person other than the applicant, this material may be deleted from the documentation.

Can I have Documents Concerning me Corrected?

Yes, providing you are an Australian citizen or are permanently resident in Australia and access was provided to those documents under the ACT FOI Act.

If, after seeing your documents, you believe the information they contain to be incomplete, incorrect, out of date or misleading, you have a legal right to ask that it be corrected, if one of these grounds is established.

You can ask for correction to be made by altering the record, adding an appropriate annotation, or both.

Companies, incorporated associations and the like are not entitled to have records about their affairs corrected under the ACT FOI Act.

How do I ask for correction of documents concerning me?

Once you have obtained access to those documents under the ACT FOI Act:

• simply write and ask. No application fee applies; and
• identify what information is incomplete, incorrect, out of date or misleading.

Explain with as much detail as possible:

• what the facts are and what evidence there is to support them; and
• what changes you want made.

Post or deliver your request to the agency. Please give your address for correspondence.

What must the agency do when it gets my request for amendment of personal records?

The agency must deal with your request as soon as practicable and tell you within 30 days what has been decided.

If the agency decides not to make the changes you asked for (or decides to make different ones), the agency must ensure that you are advised of the reasons and notify you of your rights of appeal.

What FOI Decisions can I Appeal against?

You are able to appeal against decisions:

• preventing you from seeing what you want when you want, in the form you want, or at all;
• imposing a charge to see what you want;
• refusing to change or notate documents about you which you think are incomplete, incorrect, out of date or misleading;
• letting others see documents which you say would unreasonably disclose:
  • your personal information;
  • your lawful business or professional affairs; and
  • lawful business, commercial or financial affairs of your firm;
• to give you access to documents about your physical or mental health through your doctor and not directly to you.

What Kinds of Appeal do I have?

If you are dissatisfied with the information supplied, you can require the agency to reconsider its decision (this is known as "internal review").

If you are still not satisfied after the agency has conducted an internal review, you can then seek an independent review of the decision by the ACT Civil and Administrative Tribunal ("ACAT review").

Or you can complain to the Ombudsman about the agency's decision or action ("Ombudsman review").

You also have a legal right to appeal if the agency does not tell you what decisions have been made on your request or delays informing you.

Internal review

You can ask the agency to reconsider its decision, as long as it was not made by the minister or the agency's chief executive.

Generally, you must apply for internal review within 28 days of being told of the decision, but you can ask for extra time. Simply write to the agency at the same address you lodged your initial request and ask for an internal review.

It will help if you say why you think the decision should be changed or what aspects of the decision are of concern to you.

Someone, in a position senior to the person who made the first decision, will then make a fresh decision.

You will be given the new decision within 14 days and written reasons if access or amendment is refused.

You can then appeal to the ACT Civil and Administrative Tribunal (ACAT) or complain to the Ombudsman if still dissatisfied with the decision given.

ACT Civil and Administrative Tribunal (ACAT) review

The ACAT is an independent body responsible for reviewing administrative decisions by agencies. It decides whether the decision made on your FOI request was correct.

The ACAT has the capacity to change the agency's decision.

In special cases where a conclusive certificate has been issued, the ACAT can determine only whether reasonable grounds exist for certain claims made in the certificate. It is then up to the minister to decide whether access should be given.

You can appeal to the ACAT if:

• your request was originally decided by a minister or agency's chief executive;
• you are unhappy with an internal review decision; or
• there has been a delay (see What about Delays?).

The ACAT will tell you when and where your case will be heard, who will be there, what will happen, what you should bring with you, what happens at the end of the hearing and other things you should know.

Generally, you must apply for ACAT review within 60 days of being told the decision and enclose the relevant application fee. Further information about the ACAT, including the current application fee, can be obtained from www.acat.act.gov.au/category.php?id=2. See also [41.4] Contacts, Links and Resources.

You cannot appeal to the ACAT if:

• an internal review was possible but you did not ask for it; or
• you have complained to the Ombudsman, but have not yet received his or her report.

If you think the ACAT has made a mistake of law in its decision you can appeal to the ACT Supreme Court.

Ombudsman review

The ACT Ombudsman has the power to investigate an agency's actions under the ACT FOI Act, including decisions, delays, and refusal or failure to act.

The Ombudsman can review FOI decisions to ensure they were made in a fair and proper way. The Ombudsman can't substitute a decision, but can recommend that the original decision be changed.

Before complaining to the Ombudsman, first try to resolve your problem by discussing it with the agency concerned.

Explain your point of view clearly and ask for the action or decision concerned to be reconsidered. The Ombudsman usually prefers applicants to seek an internal review before complaining about a decision.

If you complain to the Ombudsman, you can't appeal to the ACAT until you have received the Ombudsman's report on your complaint. The contact details for the ACT Ombudsman are at [41.4] Contacts, Links and Resources.

What about Delays?

The agency must tell you of its decision within:

• 30 days in the case of a request to see a document;
• 30 days in the case of a request to amend your personal records; and
• 14 days in the case of a request for an internal review.

If the agency does not respond within the time limit you can appeal to the ACAT. However, some requests involve a large number of documents which take a long time to assess. In these circumstances the agency may contact you to explain the complexity of the request and ask for an extension of time.

What will it Cost me to Appeal?

No fees are payable for Ombudsman review.

You will have to pay for your legal representation (unless you represent yourself), witnesses expenses and other costs connected with your ACAT or Supreme Court case, unless you request and receive legal aid.

Legal Aid

The ACT Legal Aid Office can give you legal or financial assistance with your ACAT or Supreme Court cases if you meet certain guidelines.

If you want to discuss your case or other information about ACT Government, legal or financial assistance for your case, please contact the ACT Legal Aid Office (see [41.4] Contacts, Links and Resources).

Contacts, Links and Resources

ACT Civil and Administrative Tribunal www.acat.act.gov.au

ACT Legal Aid Office www.legalaid.canberra.net.au

ACT Ombudsman www.ombudsman.act.gov.au

Canberra Connect www.canberraconnect.act.gov.au

Commonwealth Ombudsmanwww.ombudsman.gov.au

Commonwealth Administrative Appeals Tribunal www.aat.gov.au

Department of the Prime Minister and Cabinet, Privacy and FOI Branch www.pmc.gov.au/foi/index.cfm

Office of the Federal Privacy Commissionerwww.privacy.gov.au

National Archives of Australia www.naa.gov.au