Freedom of Information - Commonwealth

Contributed by Margaret Jordan and current to 1 September 2005

Under the Freedom of Information Act 1982 (Cth) (FOI) any individual has a legally enforceable right, regardless of whether she or he is a party to a dispute or is affected by a Commonwealth government decision, to obtain access to any document (this includes any written, printed, audio-visual material or computer material) held by any Commonwealth government department or agency, unless the document falls into one of the exemptions contained in the legislation. It is not necessary to have standing, as it is under the ADJR Act.

EXEMPTIONS FROM ACCESS

A wide range of documents is exempted including:

• documents affecting national security, defence, international relations and relations with the States;
• cabinet documents;
• internal working documents;
• documents affecting the enforcement of the law and public safety;
• documents to which secrecy provisions of enactments apply;
• documents affecting financial or property interests of the Commonwealth;
• documents affecting personal privacy;
• documents affecting legal proceedings or subject to legal professional privilege;
• documents relating to business affairs;
• documents affecting the national economy;
• documents containing material obtained in confidence;
• documents disclosure of which would be contempt of Parliament or contempt of court;
• privileged documents; and
• certain documents arising out of companies and securities legislation.

Note that an agency is not obliged to refuse disclosure of a document which falls within an exempt category: the exemptions are permissive.

REVIEW OF DENIALS OF ACCESS

An individual denied access may apply for a review of the denial to the principal officer of the agency and subsequently to the Administrative Appeals Tribunal, which may overrule the decision of the Minister or agency concerned.

ACCESS TO PERSONAL DOCUMENTS

Personal records about an individual are usually accessible to that individual only. The right of access to personal documents is likely to be used by members of the community who have been adversely treated in areas such as social security, repatriation and taxation. People who find statements in their personal records which are incomplete, false, misleading or out of date have a right to have them corrected. See further PRIVACY RIGHTS .

HOW TO GET ACCESS

Requests for access to documents must be made in writing and provide such information as is reasonably necessary to enable the agency to identify the document sought. Requests must be dealt with as soon as possible with a maximum time limit of 60 days. Narrow grounds for deferring a request for access are also provided. A document may be supplied in response to a request with exempt matter deleted, provided that it is practicable and the document as supplied would not be misleading.

Information Access Offices must be established by agencies, and agencies are required to give access to a document at the Information Access Office nearest to the residence of the applicant which has appropriate facilities to provide access in the form requested. Charges are often made for giving access. The criteria governing the setting of charges seek to limit them to direct costs of providing access and confer a wide discretion on the agency to waive charges.

The federal Attorney-General’s Department has produced a general information pamphlet about freedom of information which can be downloaded from its website at www.ag.gov.au.

DEPARTMENTAL MANUALS, DIRECTORIES AND INDEXES

To make effective use of FOI rights, applicants need to have the means of identifying the location of information in which they may have an interest. This concern is addressed by provisions in the legislation which require agencies to publish indexes and directories outlining the contents of their information systems. Moreover certain types of documents held in agencies must be periodically published and made available on request. These are documents used by an agency in making decisions or recommendations with respect to the rights, privileges or benefits of people under any scheme administered by an agency. In particular, the legislation specifies manuals or other documents containing interpretation rules, guidelines or precedents, including precedents in the nature of letters of advice. The importance of giving a right of access to these basic documents cannot be underestimated.

TOTAL EXCLUSIONS

A number of Commonwealth agencies are not subject to the legislation in any respect, while several have been given exemption in regard to certain special classes of documents. These total exclusions are set out in schedules to the legislation. Several of the exempt agencies are engaged in commercial operations, eg. Australian National Railways Commission, Commonwealth Banking Corporation. The rationale for their exclusion is that they would be placed at a significant disadvantage in their competition or dealings with private sector organisations in the same field if those organisations, themselves free of any duty to disclose information, were able to obtain commercial information through FOI. Others are concerned with Aboriginal self-management (Aboriginal Lands Councils and Lands Trusts), labour relations (National Labour Consultative Council) and national security (Australian Security Intelligence Organisation and Office of National Assessments).

Nineteen agencies have exemptions for particular classes of documents. Most relate to documents to do with the agency’s competitive commercial activities. Examples of other interests given protection are: the Australian Broadcasting Commission in relation to its program material, and the Department of Defence in relation to documents to do with activities of the Defence Signals Directorate and the Defence Intelligence Organisation.