Reforms to the Freedom of Information Act 1982 (FOI Act) in 2010 made it easier to request information and seek review of freedom of information (FOI) decisions.
Parliament enacted the reforms with the passage of the Freedom of Information Amendment (Reform) Act 2010 (Cth) and the Australian Information Commissioner Act 2010 (AIC Act). Some of the major changes that the reform Acts introduced are outlined below.
Presumption of openness
The reformed FOI Act expressly states a new presumption of openness and maximum disclosure. Agencies should provide access to information unless there is an overriding reason not to do so. Agencies are expressly forbidden from declining to grant access on grounds such as potential loss of confidence in or embarrassment to government.
Establishment of the Office of the Australian Information Commissioner
The AIC Act established the Office of the Australian Information Commissioner (OAIC) and the two new statutory positions of the Australian Information Commissioner (Information Commissioner) and the Freedom of Information Commissioner (FOI Commissioner).
The Information Commissioner, supported by the FOI Commissioner, acts as an independent monitor of FOI matters and reviews FOI access decisions made by agencies and ministers.
The Information Commissioner has also taken over most of the Commonwealth Ombudsman's functions in investigating complaints about handling of FOI requests. The Ombudsman can still investigate complaints relating to FOI where that would be more appropriate or effective.
Proactive publication of information
Agencies are required to publish specified categories of information under the Information Publication Scheme.They are also encouraged to make other information available for public access, through administrative access schemes.
Agencies and ministers must list information released in response to FOI access requests in an online disclosure log, subject to some exceptions. More information about creating FOI disclosure logs is available on the Access to Documents page and in FOI Fact Sheet 14 — Disclosure logs.
Easier, cheaper requests
The 2010 reforms made it easier to make FOI requests because:
- the request procedure is simpler
- application fees have been abolished
- processing charges have been reduced, and no charges apply to requests for personal information
- agencies are under more pressure to observe request processing time limits
- assistance is available (to both the public and agencies) from the OAIC.
More documents available
The FOI Act now extends to documents held by a contracted service provider delivering services to the public on behalf of an agency. For all contracts entered into after 1 November 2010, agencies must take contractual measures to ensure that if an FOI request is made, the agency receives documents that relate to the performance of the contract. The OAIC has prepared guidance about documents held by government contractors explaining these requirements and providing a model clause for use in agency contracts.
Exemptions for Executive Council documents and documents relating to an agency’s conduct of industrial relations have been repealed.
Archival records available sooner
Government archival records will become available for open access outside of the FOI Act progressively sooner over a period of ten years, beginning from 2011.
The ‘open access period’ under the Archives Act 1983 (Cth) used to begin after 30 years for Commonwealth records, and 50 years for Cabinet notebooks. By 2021, the open access period will have fallen to 20 years for Commonwealth records and 30 years for Cabinet notebooks. The open access period for Census information will remain unchanged at 99 years.
Strengthened review and complaint process
With the establishment of the OAIC, individuals can now request the Information Commissioner to review decisions made under the FOI Act. This provides a further incentive for agencies to ensure the best possible decision is made in the first instance. Information Commissioner reviews provide a simple, practical and cost-efficient system of external review of FOI decisions.
Individuals can also complain to the Information Commissioner about actions of an agency taken under the FOI Act.
The main provisions and underlying principles of the FOI Act are explained in the Guide to the Freedom of Information Act 1982. This guide details the historical and philosophical underpinnings of the FOI Act, as well as the key features of the 2010 reforms.