Frequently asked questions — Agencies
Find answers to frequently asked questions from agencies and FOI practitioners about access to documents and review rights under the Freedom of Information Act 1982 (the FOI Act). The information provided in these FAQs is of a general nature. It is not a substitute for legal advice.
Questions and answers
The FOI Act protects the decision maker from civil proceedings for defamation, breach of confidence or copyright infringement where the decision maker has given access to documents in good faith under the FOI Act, in the belief that the access is required or permitted to be given. See ss 90 and 91 of the FOI Act and Part 8 of the Guidelines.
Agencies must ensure that Commonwealth contracts entered into on or after 1 November 2010 contain measures that enable them to obtain certain documents from a contractor or sub-contractor to answer an FOI access request. See Part 2 of the Guidelines and Documents held by government contractors: Agency obligations under the Freedom of Information Act 1982.
The FOI Act applies to documents created or held by contractors or subcontractors who provide services on behalf of an agency to the public or third parties. It does not apply to contracts for the provision of services to the agency, such as information technology services or cleaning services. See Part 2 of the Guidelines and Documents held by government contractors: Agency obligations under the Freedom of Information Act 1982.
What should an agency do if a contractor will not comply with their contractual obligation to provide access to documents?
Contractors who do not comply with such measures will be in breach of their contract. Agencies should seek legal advice on options available to them. See Part 2 of the Guidelines and Documents held by government contractors: Agency obligations under the Freedom of Information Act 1982.
Can an agency refuse a request for access to a document if they have not received it from a contractor?
Yes. An agency can refuse a request for access if they have taken contractual measures to ensure they receive a document from a contractor and have taken all reasonable steps to ensure they receive the document, but have not received the document from a contractor. See s 24A(2) of the FOI Act and Part 8 of the Guidelines.
Any person can apply — the right to access documents under the FOI Act is not restricted to Australian citizens or people within Australia. A ‘person' also includes a body corporate, such as a company. See s 11 of the FOI Act and Part 2 of the Guidelines.
An FOI request must be in writing and state, among other things, that it is an application under the FOI Act. If a request does not meet a requirement set out in the FOI Act, an agency has an obligation to assist the applicant to complete or revise the request. See s 15(2) of the FOI Act and Part 3 of the Guidelines.
No. An FOI request must be in writing. However, if an agency receives a request that does not comply with the FOI Act requirements, it may not be necessary for the applicant to resubmit a fresh request in writing if the agency can help them to fulfil the requirements by phone. See s 15(2) of the FOI Act and Part 3 of the Guidelines.
Does an emailed FOI request meet the requirements of the FOI Act if it is not sent to the agency's ‘specified address' but to another agency email address (such as an individual staff member)?
An FOI request may be emailed to an electronic address specified by the agency. If an agency has specified an email address (such as email@example.com), a request sent to another email address should be transferred to the appropriate area of the agency. The time of receipt of the application will be when the request is received at the correct address. See s 15(2A)(c) of the FOI Act.
What happens if an agency sends an applicant an acknowledgment letter and the FOI request does not meet the Act's formal requirements? Does the processing period run or does the ‘clock stop'?
The processing period only commences on the day after a request that meets the requirements of the FOI Act is received. Agencies must help the applicant to make a request that complies with the formal requirements of the FOI Act. See s 15 of the FOI Act and Part 3 of the Guidelines.
A person cannot obtain access to a document under the FOI Act if the document is already publicly available in accordance with other legislation where a charge applies (such as a land title register), or if the document is available for purchase from the agency or is available under the Archives Act 1983 (unless the document contains personal information). Employees or former employees of an agency are not entitled to request their personnel records under the FOI Act if they have not first sought them through the agency's established access procedures (where these exist).
See ss 12 and 15A of the FOI Act and Part 3 of the Guidelines.
The agency must process the FOI requests from different people for the same documents. If one person makes subsequent requests for the same documents, each request must be treated on its merits. Publication of a popular document on the disclosure log will enable access to the document outside of the formal FOI request process.
The scope of the search required depends on the nature of the request and the information that is available. Agencies are encouraged as a matter of good administrative practice to contact the applicant to discuss the request and provide an explanation of steps taken to locate the document. See Part 3 of the Guidelines.
Not usually. Whether a search of a back-up system is necessary will depend on the circumstances of the request. See Part 3 of the Guidelines.
However, an agency may wish to consider whether the draft document falls within the deliberative processes conditional exemption. See s 47C of the FOI Act and Part 6 of the Guidelines.
Yes. Text messages and social media such as instant messaging (IM) that support the business of an agency fall within the definition of ‘document'. See Part 3 of the Guidelines and Guide to the Freedom of Information Act 1982.
Yes. Section 16 of the FOI Act deals with transfers by ‘agencies', and s 16(6) provides that a reference to an agency includes a minister. See Part 3 of the Guidelines.
The Information Commissioner expects agencies and ministers to agree to accept a transfer, unless there are exceptional circumstances. If the second agency refuses to receive a request, the agency seeking to transfer the request should write to the applicant explaining that they do not hold such documents and that the applicant may wish to contact the other agency. See Part 3 of the Guidelines.
Yes. However, the transferring agency should leave it to the receiving agency to apply to the OAIC for an extension under s 15AC as this extension can only be granted once. It is also open to the applicant to make a new request to the other agency. See s 16 of the FOI Act and Part 3 of the Guidelines.
The standard timeframe to process an FOI request is 30 days. However, the FOI Act contains a number of extension of time provisions. There are four extension types:
- Extensions with the applicant's agreement
- Extensions to allow the agency to consult a third party
- Extensions for complex or voluminous requests
- Extensions after the processing period runs out.
The 30 day period for notifying the applicant of a decision commences on the day after the day the agency or minister received the request, provided the request meets the formal requirements of s 15(2) of the FOI Act).
A ‘day' is a calendar day. However, if the last day for notifying a decision falls on a Saturday, Sunday or a public holiday, the timeframe will expire on the next day which is none of those days. The processing period may also be affected by time spent agreeing on a charge or carrying out a request consultation process. See Part 8 of the Guidelines.
Yes. Public holidays and shut down periods do not extend the processing period. To ensure compliance with the statutory timeframes and make the most appropriate use of the extension of time provisions in the Act, agencies should plan well in advance.
The guidance Public holidays and agency shut-down periods may help agencies calculate when a processing period commences and ends during holiday and shut-down periods.
Does an agency or minister have to notify the OAIC of an extension to consult with an affected third party?
Does an agency or minister need to apply to the OAIC for an extension if the request is complex or voluminous?
Yes. The agency or minister must provide reasons to the OAIC. The decision period may be extended by a further 30 days or a longer or shorter period of time, as appropriate. See Part 8 of the Guidelines and Agency Resource 13.
An agency or minister has the option to apply to the OAIC for further time after a decision has become deemed (either under s 15AC or under s 54D after an application for internal review). See Part 8 of the Guidelines and Agency Resource 13.
The principal officer of the agency or minister is taken to have made a decision to refuse access to the document on the last day of the decision period. Agencies should continue to process an FOI request even where the statutory timeframe has expired and an extension of time has been refused or not sought. The expiry of the timeframe gives the applicant the right to apply for review of a deemed decision — it does not remove the agency's obligation to process the request. See Part 8 of the Guidelines and Agency Resource 13.
Can the agency or minister request more than one extension of time from the Information Commissioner?
Yes, if an FOI request is complex or voluminous. See s 15AB of the FOI Act and Part 8 of the Guidelines.
This will be determined on a case by case basis. Factors that are not relevant are issues that are not connected to the request itself, including an agency's heavy workload, competing priorities and ongoing resource limitations. See s 15AB of the FOI Act and Agency Resource 13.
If the decision-making period has expired and the agency continues to process the request, what is the status of the agency's decision?
An agency still has a duty to make a decision on the FOI access request. The agency's obligation ceases only when the Information Commissioner commences a review of a deemed decision (that is, the date the OAIC notifies the parties that it is commencing a review, not the date an application for IC review is lodged). In these circumstances, the agency must notify the Information Commissioner in writing of the substituted decision as soon as practicable. See Part 8 of the Guidelines and Agency Resource 13.
Yes, in certain circumstances. Consultation may be required for certain types of documents: where documents affect Commonwealth-State relations (s 26A) or Norfolk Island intergovernmental relations (s 26AA), are business documents (s 27) or are documents affecting another person's privacy (s 27A).
Even when there is no specific requirement to consult, the FOI Act does not preclude consultation between agencies. If it appears another agency has an interest in a document, consult that agency to make sure you have as much information as possible to enable you to make the correct or preferable decision. The processing time is not extended for this consultation. See Part 3 of the Guidelines.
No, not always. If there are a large number of historical records it is sufficient to amend the entry in a central database. Agencies should ensure that records that have not been amended clearly cross-refer to the correct information. See Part 7 of the Guidelines and Agency Resource 3.
Yes, in some circumstances if more work was involved than the agency had anticipated. A higher charge can only be imposed if the agency gives the applicant full access to all the documents sought. It is open to an agency or minister, while processing an FOI request, to tell an applicant that a charge may be higher than the estimated charge. See r 10 of the FOI (Charges) Regulations and Part 4 of the Guidelines.
As no charge can be imposed for documents containing an applicant's personal information, does this include personal information about more than one person?
No. ‘Personal' only includes information about the applicant, and not a third party's personal information. The applicant may be charged for other information. See r 5 of the FOI (Charges) Regulations and Part 4 of the Guidelines.
How should charges be calculated if documents contain only a small amount of personal information and the rest is policy information?
If the personal information forms a small part of a document and it is likely that an agency or minister will expend extra time or resources in providing access to the entire document, it may be appropriate for the agency or minister to impose a charge for providing access to the portion of the document that does not contain personal information. Before doing so, the agency or minister should consult the applicant about narrowing the scope of the request and providing access without charge to the portion of the document that contains personal information. See Part 4 of the Guidelines.
Is information about a person's small business accepted as ‘personal information' for the purpose of charging?
No, not necessarily. However, information about a person's small business may be considered personal information if a person's identity can be reasonably ascertained from the information. The information may be private in nature or publicly known. It may be factual, descriptive or an opinion about that individual. See Part 4 of the Guidelines.
Is the public interest test for charges decisions the same as the public interest test for conditional exemptions?
No, they are separate tests. In exercising the discretion to reduce or waive a charge, an agency or minister must consider ‘whether the giving of access to the document in question is in the general public interest or in the interest of a substantial section of the public'. See Part 4 of the Guidelines.
No. The Information Commissioner is aware that the Australian Government Solicitor has issued a charges calculator in the past. It is a matter for agencies to determine whether such tools would be of use to them.
Exemptions are not subject to an overriding public interest test. If a document meets the criteria to establish a particular exemption, it is exempt from release. See Part 5 of the Guidelines and Agency Resource 5.
Conditional exemptions, on the other hand, are subject to the public interest test. The public interest test involves determining whether, on balance, the benefit to the public resulting from disclosure is outweighed by the benefit to the public of withholding the information. See Part 6 of the Guidelines and Agency Resource 5.
Personal information is information that identifies or could reasonably identify an individual. The Privacy Act 1988 and the FOI Act define ‘personal information' in the same way:
Personal information means information or an opinion (including information forming part of a database), whether true or not, and whether recorded in material form or not, about an individual whose identity is reasonably apparent, or can be reasonably ascertained, from the information or opinion.
See s 4(1) of the FOI Act and Part 6 of the Guidelines.
No. Personal information is protected from disclosure under the FOI Act where this would be unreasonable and contrary to the public interest. Where an agency decides to release personal information under the FOI Act (ie, where it is reasonable and in the public interest), the Privacy Act allows this under Information Privacy Principle 11(1)(d).
Generally yes. An applicant who requests access to a document in a particular form has a right to be given access in that form. However, access in that form may be refused if it is not reasonable or possible. In such cases, access should be given in another form. See s 20 of the FOI Act and Part 8 of the Guidelines.
Not always. An agency must withhold release of documents until outstanding charges are paid and third party review rights have run out (see Part 8 of the Guidelines). An agency may also decide to defer access in certain circumstances. The agency must tell the applicant the reason and how long the period of deferment will be. See s 21 and Part 8 of the Guidelines.
Otherwise, agencies and ministers should ensure that access is provided as soon as practical after the decision is made. For large requests it is open to an agency and an applicant to consult and agree on a staggered approach to release of documents.
An agency should apply its own procedures to satisfy itself of the FOI applicant's identity before giving them access to personal information. If the applicant could not show that it was their personal information, the agency or minister would treat the FOI access request as a request by a third party and the personal privacy conditional exemption would apply. See Part 3 of the Guidelines.
Do agencies need to check with the Information Commissioner whether third parties have sought review before giving the applicant access?
Yes. To minimise the possibility of dispute about the correctness or timing of a decision to release information where a third party objects, agencies and ministers are advised to check first with the Information Commissioner as to whether any review proceedings are in progress. See Part 8 of the Guidelines.
Does an FOI decision need to state why information has been deleted from documents released to the applicant?
Yes. Where a document is released with deletions, the grounds on which the deletions have been made should be provided. The notice of decision should set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. See Part 8 of the Guidelines.
Complaint: If a person is concerned about the way an agency has handled their matter, they can complain to the Information Commissioner who may investigate. A person can also make a complaint about an agency's IPS or disclosure log. See Part 11 of the Guidelines.
Review: If an applicant or an affected third party is unhappy with an agency's decision about giving or refusing access to documents, they can ask for the decision to be reviewed. The applicant can ask the agency to review its decision internally, except if a minister or the principal officer of the agency made the decision personally. See Part 9 of the Guidelines and Agency Resource 8.
An applicant or third party also has the right to ask the Information Commissioner to review an access decision, either without seeking an internal review or after going through the internal review process. See Part 10 of the Guidelines and Agency Resource 8.
Most FOI complaints are handled by the OAIC. However, the Commonwealth Ombudsman can investigate a complaint about action taken by an agency under the FOI Act, particularly where it would be more appropriate for the Ombudsman to investigate. The Ombudsman must consult with the Information Commissioner before deciding to investigate a complaint about a matter in certain circumstances. If the Ombudsman decides not to investigate a complaint, the Ombudsman must transfer the complaint and all relevant documents and information to the Information Commissioner. See Part 11 of the Guidelines.
For more information about the Commonwealth Ombudsman, see www.ombudsman.gov.au/.
Preferably. The Information Commissioner encourages applicants to seek internal review before applying for external review in order to allow the agency the opportunity to reconsider its initial decision. An applicant's needs may also be met more quickly internal review as a 30 day time limit applies.
If an applicant applies for internal review and review by the Information Commissioner at the same time, the Information Commissioner will ordinarily await the outcome of the internal review before taking further steps in the IC review process. See Part 9 of the Guidelines and Agency Resource 8.
During the IC review process, an agency or minister should continue to assess options to resolve the review matter. At any time during the process, the agency or minister may vary or substitute an access refusal decision to favour the applicant. See s 55G of the FOI Act.
If the Information Commissioner decides to vary a decision, the Information Commissioner will not release any documents to the applicant. Agencies and ministers must comply with a decision by the Information Commissioner and it is up to them to implement the decision and release relevant documents. The agency or minister should bear in mind that there are rights of appeal to the AAT from a decision by the Information Commissioner. See s 55K of the FOI Act and Part 10 of the Guidelines.
The AAT can review an IC review decision and a decision by the Information Commissioner to declare a person a vexatious applicant. See Part 10 of the Guidelines. In addition, the Information Commissioner may decide not to undertake an IC review if satisfied that the interests of the administration of the FOI Act make it desirable that the IC reviewable decision be considered by the AAT. See s 54W(b) of the FOI Act and Part 10 of the Guidelines.
For more information about the AAT see www.aat.gov.au/.
If the Information Commissioner declines to review an IC reviewable decision on the basis that it should be reviewed by the AAT, is the applicant required to pay AAT fees?
Yes, the applicant must pay a fee, subject to exceptions. The full list of the relevant decisions is available on the AAT's website at: www.aat.gov.au/FormsAndFees/Fees.htm. In certain circumstances, the AAT application fee can be reduced. See www.aat.gov.au/FormsAndFees/Fees.htm.
The Information Commissioner is not a party to the proceedings in the AAT, except in relation to review of a declaration that a person is a vexatious applicant. See Part 10 of the Guidelines.
In order to declare a person to be a vexatious applicant the Information Commissioner must be satisfied that:
(a) the person has repeatedly engaged in access actions that involve an abuse of process
(b) the person is engaging in a particular access action that would involve an abuse of process, or
(c) a particular access action by the person would be manifestly unreasonable.
See s 89L(1) and Part 12 of the Guidelines.
The Information Commissioner will not make a vexatious applicant declaration based only on a person's FOI access actions prior to 1 November 2010. However, a prior action may be relevant if it was pursued through all stages of the review process and relates to the same documents or issues that are in a new access application. See Part 12 of the Guidelines.
An agency's operational information is information the agency holds to assist it to perform or exercise its functions or powers in making decisions or recommendations affecting members of the public (or any particular person or entity, or class of persons or entities). Examples include agency rules, guidelines, practices and precedents. See s 8A(1) of the FOI Act and Part 13 of the Guidelines.
A person cannot be disadvantaged by the application of any rule, guideline or practice if the person could have avoided that prejudice if they had been aware of it. See s 10 of the FOI Act and Part 13 of the Guidelines.
All agencies are required to complete a review of their IPS, in conjunction with the Information Commissioner, before 1 May 2016. General information to assist agencies in their review of the IPS can be found here: Information Publication Scheme Compliance Program. In April 2012 a letter was sent by the Information Commissioner to the heads of Australian Government agencies about the OAIC's forthcoming IPS compliance activity.
Yes. The guidelines outline the requirements of the FOI Act as well as making recommendations to help agencies achieve better practice. See Part 13 of the Guidelines.
It would generally be unreasonable to publish information if access has been given to the individual or business concerned, or where the individual or business had consented to the release of the information to a particular applicant. It would generally not be unreasonable to publish the names of Commonwealth officials in connection with their duties.
Is the test that something is ‘unreasonable' to publish in a disclosure log different from the test of unreasonableness in relation to an exemption or conditional exemption?
Yes, a decision to publish information under ss 8(2)(g) or 11C is separate from a decision about whether to give an applicant access to documents. For example, it may be reasonable to grant a person access to documents containing personal information about them, but it would generally be unreasonable to publish that information on a disclosure log.
- Senate Order No 8: Production of Departmental File Lists
- Senate Order No 9: List of Departmental Contracts ($100,000 or more)
- Senate Order No 10: List of Advertising/Public Information Projects ($100,000 or more)
- information of a kind that is routinely requested from an agency by Parliament through a Committee.
The disclosure log lists information that has been released in response to an FOI access request for documents held by the agency or minister. See Part 14 of the Guidelines.
If documents that were released in response to an FOI request contain personal or business information, do they have to be published in the disclosure log?
No, if the publication of the personal or business information released in response to an FOI request would be unreasonable. See s 11C(1) of the FOI Act and Part 14 of the Guidelines.
Do documents need to be available in full text or is it possible to provide a link or contact information?
The Information Commissioner recommends that agencies and ministers publish the information in full on their websites. The FOI Act says that agencies must publish information on their websites by:
- making it available for download, or
- publishing links to other webpages where the information can be found, or
- publishing details of how the information may be obtained.
See s 11C(3) of the FOI Act and Part 14 of the Guidelines.
The FOI Act does not require information attached or referred to in an agency's disclosure log to be made available indefinitely. When conducting routine maintenance or updating a website an agency may decide to withdraw some content and make the information available in another form, for example, on request. See Part 14 of the Guidelines.
Is the decision to publish information in the disclosure log or the IPS a decision that the Information Commissioner can review?
No. A decision to publish information under the disclosure log or IPS is not a reviewable decision under the FOI Act. Such decisions can however be reviewed under the Administrative Decisions (Judicial Review) Act 1977.
The Information Commissioner may conduct an own motion investigation into an agency's compliance with the IPS and disclosure log requirements. A complaint about an agency's IPS or disclosure log compliance may also be made to the Information Commissioner. See Part 14 of the Guidelines.
The FOI Act does not restrict any power that an agency has to publish information, including information that is exempt from disclosure under the FOI Act. Agencies should develop policies that encourage publication of information outside the FOI Act.
The FOI Act should be a mechanism of last resort and agencies and ministers are encouraged to develop procedures that allow information to be released as a matter of course. See s 3A and Part 1 of the Guidelines.
Every three months each agency or minister must provide the following information for the Information Commissioner's annual report:
- the number of FOI requests made under s 15
- the number of decisions granting, partially granting or refusing access
- the number and outcome of requests to amend personal records under s 48
- charges collected for processing FOI requests
- the number and outcome of applications for internal review under s 54.
The Information Commissioner has also continued the past practice of the Department of Prime Minister and Cabinet to request additional information from agencies.
Agencies and ministers will enter their FOI statistics through a web portal managed by the OAIC. For more information see: Part 15 of the Guidelines and Guide to the quarterly and annual FOI Act statistical returns to the Office of the Australian Information Commissioner.
Not at this stage, although the FOI Guidelines contain some references to good administrative practice (see Part 3 of the Guidelines). There is substantial guidance for agencies on records management from a variety of sources. See the websites of the: