Freedom of Information

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This article is a topic within the subject Administrative Law.

Contents

Required Reading

R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012, [18.1.12]-[18.1.21E], [18.2.1]-[18.2.20], [18.2.22]-[18.2.26], [18.2.32]-[18.2.37], [18.3.1]-[18.3.6].

Study Guide: material from the Office of the Information Commissioner.

Freedom of Information Act 1982 (Cth).

Philosophy and scope

[1] The access to information legislation builds upon a long tradition of democratic theory relating to government transparency and public participation in government decision-making.

  • “A well informed citizenry is the lifeblood of democracy; and in all arenas of government, information, particularly timely information, is the currency of power.”[2]
  • “How can any community progress without continuing and informed and intelligent debate? How can there be debate without information?”[3]
  • “Freedom of information is a fundamental human right and the touchstone of all freedoms to which the United Nations is consecrated.”[4]

A central purpose of access to information is to provide a public right of access to government documents as a means of promoting open government. This concept has been broadened by two trends:

  • The greater readiness of government agencies to provide information to the public outside the formal requirements of freedom of information (FOI) legislation.
  • Information technology that provide both opportunities and challenges for government to publish or provide access to information through the internet.

Reports and Commentary

The Australian Law Reform Commission and the Administrative Review Council, Open Government: A review of the Federal Freedom of Information Act 1982[5]

  • The Freedom of Information Act was the first national FOI legislation in a country with a Westminster style of responsible government. The Act provides a right of access to information in the possession of government departments and agencies. It aims to “ensure open and accountable government.” The objectives cited in the first annual FOI report include:
    • To improve the quality of agency decision-making ;
    • To enable citizens to be kept informed of the functioning of the decision making process as it affects them and to know the criteria that will be applied in making these decisions; and
    • To develop the quality of political democracy by giving all Australians the opportunity to participate fully in the political process.”

Declaration of Open Government, Department of Finance and Deregulation::[6]

  • The government is committed to “better access and use of government held information, sustained by the innovative use of technology.”
  • “Agencies are to reduce barriers to online engagement, undertake social networking, crowd sourcing and online collaboration projects and support online engagement by employees, in accordance with the Australian Public Service Commission Guidelines.
  • 3 key principles = informing, engaging and participating.

Office of the Australian Information Commissioner, Guide to the Freedom of Information Act 1982:[7]

  • Open government covers the themes of:
    1. Public access to government held information upon request – “a legal right to request access to specific documents and to challenge access denials before an independent commissioner or tribunal... Government agencies are expected to promote disclosure”, for example “by preparing records in a form that supports prompt and inexpensive disclosure or publication...”
    2. Open data through proactive publication of public sector information – “information should be published on the web in a form that makes it easily discoverable, downloadable, machine-readable and useable.”
    3. Civic engagement and collaboration – “facilitat[ing] community participation in government policy formulation, decision-making, and program review...” through, for example, “techniques such as blogs, social networking, crown sourcing and online consultation and community collaboration projects.”

Criticisms

There are large costs associated with the government administering access to information legislation. The 2012 report by the Australian Information Commissioner[8] suggested that a balance needs to be struck between open government objectives and the administrative costs to government, based on the following:

  • Support of a democratic right – A substantial part of the cost should be borne by the government.
  • Lowest reasonable cost – No one should be deterred because of cost.
  • Uncomplicated administration – The charges framework should be clear and easy.
  • Free informal access as a primary avenue – to augment legal rights.

The debate currently grapples with whether the framework of the legislation needs to take into account the impact of technology on government record keeping and information dissemination. Lastly, some argue that the greater pressure on government agencies to be more transparent has adversely affected policy development and internal deliberation.

  • Tony Blair argues that FOI legislation in Britain has undermined sensible government. “The truth is that the FOI Act isn’t used, for the most part, by ‘the people’. It’s used by journalists... as a weapon.”[9]

Outline of the Commonwealth FOI Act

[10]The essential features of the Act, as summarised in the Guide to the Freedom of Information Act 1982 (2011),[11] are:

  • An equal right of access to government documents. A FOI applicant is not required to explain their reason for seeking access, or demonstrate a special need for or interest in a document.
  • A legal right. A government agency or minister has no residual discretion to deny access to documents upon request, and can do so only if a document is exempt from disclosure under the FOI Act.
  • A person who is denied access can appeal against the decision to an independent tribunal. The tribunal undertakes merit review and can make a fresh determination that is binding on the minister or agency.
  • At all stages of the process, the agency or minister bears the onus of establishing that their decision is justified.
  • Agencies must publish information that explains their role and work, such as their decision making powers, organisational structure, categories of documents, FOI procedures, and policies and guidelines that affect members of the public.
  • An agency or minister may grant access, including to exempt documents, unless prevented by doing so by a secrecy provision in another statute.

These principles were supplemented by reforms in 2010:

  1. The Office of the Australian Information Commissioner was established, with the responsibility for freedom of information, privacy protection and information policy advice.
  2. A new Information Publication Scheme was established, requiring publication of extended categories of government information.
  3. Tighter controls were placed on FOI processing to make it easier for people to make FOI requests, to reduce FOI charges and to lessen delay in FOI decision-making.
  4. The presumption of openness and maximum disclosure was reflected more strongly in a new objects clause and a new public interest balancing test that applies to many exemptions.

Summary of “Key Features of the FOI Act” (Study Guide Material)

Scope of application

“Every person has a legally enforceable right to obtain access... to a document of an agency [and] an official document of a Minister” (s 11), unless the documents is exempt.

Government agencies subject to the FOI Act

Most Australian Government agencies are subject to the FOI Act, including:

  1. All departments of the Australian Public Service
  2. An agency that is a ‘prescribed authority', which includes agencies established under an enactment or Order-in-Council (other than incorporated companies) and bodies declared by regulation
  3. A Norfolk Island authority.

Some Australian Government agencies are expressly excluded from the operation of the Act. The list includes Aboriginal Land Councils and Land Trusts, the Auditor-General, Australian Government Solicitor, the Australian Industry Development Corporation and security intelligence agencies such as the Australian Secret Intelligence Service (ASIS), the Australian Security Intelligence Organisation (ASIO), the Inspector-General of Intelligence and Security (IGIS) and the Office of National Assessments (ONA).

  • Some agencies are exempt in relation to particular documents – e.g. the ABC is exempt in relation to its program material; Australia Post, Comcare, CSIRO (Commonwealth Scientific and Industrial Research Organisation) and Medicare in relation to their commercial activities; and the Reserve Bank of Australia in relation to its banking operations and exchange control matters.
  • The Act applies to courts and the Official Secretary to the Governor-General only in relation to documents that concern matters of an administrative nature.
  • All agencies and ministers are exempt from the operation of the Act in relation to 'intelligence agency documents' or those relating to defence.

Ministers

The FOI Act treats a minister's office as being separate from the portfolio department.

  • A minister's office is thus responsible for processing FOI requests that are directed to the minister, and for making a decision on a request.
  • The minister's office can transfer a request to another agency if the agency also holds the relevant documents or the request relates more closely to its functions.

Government contractors

The FOI Act applies to some documents created or held by contractors or subcontractors who provide services to the public or third parties on behalf of agencies. To implement this principle, agencies are required to ensure that all applicable contracts entered into after 1 November 2010 include a clause that enables the agency to obtain relevant documents from the contractor or subcontractor.

Documents

The right of access conferred by the FOI Act applies to documents, not information. However, some provisions of the Act do refer to information.

  • ‘Document' is defined broadly in the Act as including any paper or other material on which there is writing or a mark, figure or symbol; electronically stored information; maps, plans, drawings and photographs; and any article from which sounds, images or writing are capable of being reproduced.
  • However, ‘document' does not include material retained for reference purposes that is otherwise publicly available (for example, library books) or Cabinet notebooks.

Requests under the FOI Act

When a person makes an FOI request, a number of issues may need to be addressed by the agency. They include:

  • assisting an applicant, where necessary, to meet the requirements of the FOI Act when making a request
  • consulting a third party who may be affected by disclosure of requested documents
  • transferring a request to a more appropriate agency
  • notifying and imposing a charge for access to a document
  • granting or refusing access to a document and providing the reasons for the access decision.

In processing an FOI request, agencies must operate within the timeframes set out in the FOI Act.

Who can make an FOI request?

The FOI Act states that ‘every person' has a legally enforceable right to obtain access to documents under the Act. The person making the request does not have to be an Australian citizen or resident, nor be in Australia at the time of making the request. A request can also be made by a company, an organisation or a state government agency.

In practice, there are situations in which a person's identity is relevant to whether access will be granted. A person is more likely than other members of the public to be granted access to documents that contain their own personal information; and a business is more likely than others to be granted access to documents that contain information about its commercial or financial affairs.

How to make a request

Five requirements must be met for a request to qualify as a request under the FOI Act.

  1. Written request - Many agencies have a pro forma request form on their website.
  2. FOI flag - The request must state that it is an application made under the FOI Act. Agencies should take a flexible approach when assessing whether an applicant has met this requirement.
  3. Documents described - The description need not be precise: the FOI Act requires only that the request ‘provide such information ... as is reasonably necessary to enable a responsible officer' of the agency to identify the document.
  4. Return address - May be an email.
  5. Sent to agency - Many agencies have provided an online lodgement facility on their web site.

A FOI applicant does not have to disclose his or her identity; a pseudonym can be used, or one person can make a request on behalf of another. (Although identity may be necessary when requesting access to a document that contains personal information).

Timeframes for dealing with requests

The FOI Act stipulates the following timeframes for dealing with a request:

  • Notifying receipt of request - As soon as practicable, but within 14 calendar days.
  • Notifying decision - The agency must notify the applicant of its decision as soon as practicable, but within 30 calendar days after the day on which the request is received.
  • Providing access - If the agency decides to provide access to documents in response to a request, access must be provided as soon as reasonably practicable after the applicant has been notified of the decision, the applicant has paid any charges for access set by the agency and any opportunities a third party has to seek review of the decision to grant access have run out. An applicant may complain to the Information Commissioner about unreasonable delay.

There are six ways that the 30 day processing period is or can be extended:

  • Consultation - An agency may extend the period for 30 days to enable it to consult an affected third party or a State or foreign government or organisation as part of deciding whether a document covered by a request is exempt.
  • Agreement - An applicant may agree in writing to extend the processing period for up to 30 days.
  • Information Commissioner extension - complex and voluminous requests - 60 day extension if consultation is occurring or up to 90 days if an applicant has agreed to a further extension.
  • Information Commissioner extension - deemed decisions- If an applicant has applied to the Information Commissioner for review of an agency's deemed refusal decision, (when the agency has not replied within the timeframe), the agency may apply to the Commissioner for further time to make a decision on the request. This avenue is available only once.
  • Settling a charge - If a charge is payable, the period is suspended until the charge or a deposit is paid. If the applicant does not agree to pay the charge within 30 days or such further period allowed by the agency, or does not contend the charge, the FOI request is taken to have been withdrawn.
  • Clarifying scope of request -Before refusing a request on the basis that it does not adequately identify the documents requested, or that processing it would substantially and unreasonably divert the resources of the agency from its other business, an agency must consult with the applicant. An applicant must respond within 14 days.

Transferring a Request

An agency may transfer a request for access to another agency, in three situations:

  1. Where the document requested is in the possession of the other agency, but not the agency receiving the request.
  2. Where the subject matter of the document is more closely connected with the other agency's functions.
  3. Where the document originated in, or has been received from, an agency that is excluded wholly or partly from the operation of the FOI Act (for example, ASIO or Australia Post) and is more closely connected with that other agency's functions.

Granting a request for access

An agency is required to provide access to a document upon request, unless one of the reasons considered below under ‘Refusing a request for access' applies. An applicant can request that access be given in one of the following forms:

  • inspection of the document
  • a copy of the document
  • hearing or viewing an audio or visual recording
  • providing a written transcript of an audio recording or a document written in code

Deferring access

An agency may defer giving access to a document in response to an FOI request in the following circumstances:

  • if the document is required to be published by law - until the end of the period in which the document is required to be published
  • if the document has been prepared for presentation to Parliament or to a particular person or body - until the end of a reasonable period for it to be presented
  • if the premature release of the document would be contrary to the public interest - until the occurrence of any event, or the end of any time period, after which the document's release would not be contrary to the public interest
  • if a minister considers the document is of such general public interest that the Parliament should be informed first of the contents of the document - until the end of five sitting days of either House of Parliament.

Refusing a request for access

Access can be refused only on a ground stated in the Act (called an ‘access refusal decision'). The grounds include:

  • The request did not meet the requirements of the FOI Act - for example, the request was not made in writing or did not adequately describe the documents requested. Agencies should, however, be mindful of their obligation to take reasonable steps to assist a person to make a request that complies with the formal requirements of the FOI Act.
  • The agency has taken all reasonable steps to locate the requested document but has determined that it cannot be found or does not exist.
  • The work involved in processing the request would substantially and unreasonably divert the agency's resources or substantially and unreasonably interfere with the performance of the minister's functions.
  • The agency and applicant have failed to agree on a charge for access.
  • The document requested is an exempt document.
  • The document requested is a conditionally exempt document and providing access at that time would, on balance, be contrary to the public interest.
  • The document requested is an official document of a minister that contains some matter not relating to the affairs of an agency or a Department of State.
  • The request is made to an agency that is excluded (wholly or partly) from the operation of the FOI Act, or the request relates to a document that originated with an agency that is excluded.

Charges

Schedule to the Charges Regulations sets out the table of charges application under the FOI Act. See page 27 of the Study Guide.

Protections when access to documents is given

The FOI Act provides a range of protections against civil and criminal liability for the Commonwealth, ministers, agencies and agency officers who give access to documents, in good faith, if required or permitted by the FOI Act or otherwise. Similarly, a person is not liable to any action for defamation, or breach of confidence, because they have supplied a document to an agency or minister and access to the document is given.

Exemptions

Several exemptions, such as public interest, intelligence and defence documents and documents disclosing private information about a person, have already been discussed. See Study Guide pages 27-31 for detailed information on all of the categories of exemption.

Amendment or annotation of personal information

The FOI Act enables people to apply to have records about them amended that they believe are incomplete, incorrect, out of date or misleading. See Study Guide pages 31-32 for these processes.

Review

Most decisions made in relation to the FOI Act by agencies are reviewable. The review may take the form of an internal review, a review by the Federal Court or the AAT, a review by the Information Commissioner and there is even the possibility of investigation by the Commonwealth Ombudsman (although this would be likely to be referred to the Information Commissioner if appropriate). See pages 32-37 for further details.

Vexatious applicants

The Information Commissioner may declare a person to be a vexatious applicant, either on the Commissioner's own initiative or after considering an application by an agency or minister. Behaviour that might lead the Information Commissioner to consider declaring a person to be a vexatious applicant includes:

  • repeatedly engaging in access actions that involve an abuse of process
  • harassing or intimidating an individual or an agency employee
  • unreasonably interfering with the operations of an agency
  • seeking to use the FOI Act to circumvent restrictions imposed by a court on access to a document or documents.

The Information Publication Scheme

This scheme encourages agencies to take initiative to publish documents. An agency or minister may decline to publish information that would require extensive modification to make it publishable. The information released under the FOI Act may be published in one of three ways:

  • making the information available for downloading from the agency's or minister's website (it is common that PDF copies of documents released under the FOI Act are made available)
  • linking to another website where the information can be downloaded, or
  • giving details of how the information may be obtained (for example, upon written request for a photocopy, for which a copying charge can be charges).

See Study Guide pages 37-40 for more information, particularly the nine categories of information which must be published.

Note: a more detailed explanation of the FOI legislation can be viewed here.

End

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References

Textbook refers to R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012.

  1. Textbook, pp. 1004-1010.
  2. Ralph Nader, ‘Freedom of Information: the Act and the Agencies’ (1970) 5 Harvard Civil Rights – Civil Liberties Law Review 1.
  3. Prime Minister Fraser, The Canberra Times, 22 September 1976.
  4. Declaration by the United Nations General Assembly in 1946.
  5. Australian Law Reform Commission and the Administrative Review Council, , ALRC Report No 77/ARC Report No 40 (1995).
  6. Declaration of Open Government, Department of Finance and Deregulation, July 2010
  7. Office of the Australian Information Commissioner, Guide to the Freedom of Information Act 1982, (2011).
  8. Review of the Charges Under Freedom of Information Act 1982 (2012).
  9. A Journey: My Political Life, Alfred A Knopf, New York, 2010.
  10. Textbook, pp 1010-11.
  11. Office of the Australian Information Commissioner, 14.
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