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FOI Guidelines Part 1: Office of the Australian Information Commissioner

Archived Document — This document is no longer in use. Read the current FOI guidelines.

(original) December 2010

Why is freedom of information legislation important?

1.1 Freedom of information (FOI) legislation plays a key role in a modern democracy for four reasons:

  • FOI provides a mechanism for individuals to see what information about them is held on government files, and to seek to correct that information if they consider it is wrong or misleading.
  • FOI enhances the transparency and accountability of policy making, administrative decision making and government service delivery.
  • A community that is better informed can participate more effectively in the nation's democratic processes.
  • Information gathered by government, at public expense, is a national resource and should be available more widely to the public.

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Key reforms

1.2 Australia was the first nation with a Westminster style of government to enact FOI legislation. Since the Freedom of Information Act 1982 (FOI Act) commenced, it has been subject to considerable scrutiny and concerns have been raised about its operation. Among the reports proposing reform of the FOI Act and the establishment of a new agency to oversee FOI administration was a 1995 report by the Australian Law Reform Commission and the Administrative Review Council.[1] Building on those reform proposals, the Freedom of Information Amendment (Reform) Act 2010 and the Australian Information Commissioner Act 2010 were passed by Parliament in May 2010. Further information about the reform process, which included public consultation on exposure draft legislation and an inquiry by the Senate Finance and Public Administration Legislation Committee, is available on the Department of the Prime Minister and Cabinet website at www.dpmc.gov.au/foi/foi_reform.cfm.

1.3 These reforms:

  • seek to create a cultural change, to make the provision of access to information the norm, unless there are compelling public interest reasons that argue against disclosure
  • put a greater emphasis on the proactive publication of information by government agencies
  • seek to improve FOI administration by government agencies
  • provide an external merit review process characterised by reduced formality and expense
  • through the creation of the statutory positions of the Australian Information Commissioner and Freedom of Information Commissioner (FOI Commissioner), provide a 'champion' to assist the public and agencies in managing FOI, to promote good FOI practice, and to monitor and review how the requirements of the legislation are being met
  • through the creation of the Office of the Australian Information Commissioner (OAIC) (which includes the Privacy Commissioner), promote a more strategic approach to information management generally in government, and improve the way the interface works between privacy and freedom of information policies and issues.

1.4 The reformed FOI Act applies to all requests for access to records or amendment of personal information received on or after 1 November 2010. The OAIC also commenced on 1 November 2010. The OAIC can only undertake review of decisions made in respect of requests received on or after 1 November 2010, but can investigate complaints about agency FOI handling occurring prior to that date. The Information Publication Scheme commences on 1 May 2011. From that date, agencies will also be required by s 11C of the Act to publish information that has been released in response to individual requests made under the FOI Act, except in specified circumstances such as where the information includes personal information and publication would be unreasonable.

Objects of the FOI Act

1.5 The objects of the Act have been amended to emphasise the reasons for giving the Australian community access to information held by government. Government officers must have regard to these objects when making decisions under the legislation.

1.6 The objects of the FOI Act are set out in s 3:

  • to give the Australian community access to information held by government, by requiring agencies to publish that information and by providing for a right of access to documents
  • to promote Australia’s representative democracy by increasing public participation in government processes, with a view to promoting better-informed decision making
  • to promote Australia’s representative democracy by increasing scrutiny, discussion, comment and review of government activities
  • to increase recognition that information held by government is to be managed for public purposes and is a national resource
  • to ensure that powers and functions in the FOI Act are performed and exercised, as far as possible, so as to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

1.7 The FOI Act is not intended to restrict the circumstances in which government information can be released. Section 3A(2) states that it is not the intention of the Parliament in enacting the FOI Act to limit the power of government agencies to publish information or provide access to documents, or to prevent or discourage agencies from doing so. An agency may disclose information without a request under the FOI Act, including information which would be exempt under the Act. An agency may also disclose exempt information if a request is made under the Act, except where restrictions such as secrecy provisions prohibit disclosure.

1.8 To complement this, ss 90, 91 and 92 provide a range of protections against civil and criminal liability related to the publication of, or giving access to, documents in good faith under the FOI Act or in the belief that it is otherwise required or permitted.

Access to records

1.9 There are major changes for access to records under the Archives Act 1983. The open access period, which specifies the age at which most Commonwealth government records are available for public access, is being brought forward from 30 years to 20 years (and from 50 years to 30 years for Cabinet notebooks). These changes are being phased in over a 10-year transition period, so that by 2021 the open access period will be 20 years for most Commonwealth records. The open access period remains at 99 years for census information.

Exemptions and the public interest test

1.10 The exemption provisions in the FOI Act have been amended. Part IV of the Act, which contains the exemption provisions, was reorganised to group together those provisions which are subject to the public interest test (conditional exemptions) and those which are not (exemptions). A new single public interest test, weighted towards disclosure, applies to conditional exemptions. Decision makers when giving reasons for their decisions must address the public interest factors they have taken into account. Some exemption categories, including Executive Council documents, have been repealed.

Information Publication Scheme

1.11 A new Information Publication Scheme applies to Commonwealth agencies that are subject to the FOI Act. The scheme, which commences on 1 May 2011, provides a statutory framework for proactive publication of information by agencies. The purpose of the scheme is to allow the FOI Act to evolve as a legislative framework for providing access to information through agency-driven disclosure rather than as a scheme that is primarily reactive to requests for documents.

1.12 The scheme requires agencies to publish – generally on the agency website – an information publication plan (agency plan), describing what the agency proposes to publish and how the information will be made available. The scheme specifies nine classes of information that must be published and provides for agencies to publish additional information. In certain limited circumstances, the Information Commissioner can make determinations that relieve an agency from the requirement to publish certain classes of information. Information published by an agency must be accurate, up-to-date and complete.

1.13 The Information Commissioner will publish separate guidelines for agencies on the Information Publication Scheme.

Other amendments

1.14 Other amendments that improve the operation of the FOI Act include:

  • abolition of application fees for FOI access requests and reviews (other than for review by the Administrative Appeals Tribunal (AAT))
  • the Information Commissioner’s powers to extend the time period available to an agency to process an FOI process request
  • the requirement to consult with an FOI applicant before a request is refused, on the basis that the work involved in processing the request would substantially and unreasonably divert the agency from its other operations.

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The role of the Australian Information Commissioner

1.15 The OAIC is headed by the Australian Information Commissioner, supported by the FOI Commissioner (a new position) and the Privacy Commissioner (an existing position that has moved to the OAIC). The OAIC has three broad functions:

  • the privacy functions, which are functions already conferred on the Privacy Commissioner by the Privacy Act 1988
  • the FOI functions, which are new functions directed to provide oversight of the operation of the FOI Act
  • the information commissioner functions, which are to report to the minister on policy and practice with respect to government information management and any other functions conferred on the Information Commissioner.

1.16 The privacy, FOI and information commissioner functions are vested in the Information Commissioner by the Australian Information Commissioner Act 2010 (AIC Act). The privacy and FOI functions can be exercised by all three commissioners, although it is expected that the privacy functions will principally be exercised by the Privacy Commissioner and the FOI functions by the FOI Commissioner. Only the Information Commissioner can exercise the information commissioner functions.

1.17 The FOI functions include merit review of FOI decisions, investigating complaints about FOI administration, publishing guidelines on the FOI Act, promoting awareness and understanding of the FOI Act, conducting training, providing advice and assistance, monitoring agency compliance with the FOI Act, and collecting and publishing information and statistics about FOI matters.

1.18 An FOI applicant can apply to the Information Commissioner for merit review (IC review) of an access refusal decision by an agency or minister, and an affected third party can apply for review of an access grant decision. The application for IC review can be made following the initial decision by the agency or minister, or after internal review by the agency. The Information Commissioner can affirm the agency’s or minister’s decision, vary that decision, or substitute a new decision to be implemented by the agency or minister. A party to the IC review can apply to the AAT for review of the Information Commissioner’s decision, except in some limited circumstances (see Part 10).

1.19 The Information Commissioner can also investigate action taken by agencies under the FOI Act, either in response to a complaint or on the Commissioner’s own motion. The merit review function and the complaint investigation function provide different remedies. If a person is concerned with the correctness of an access denial or access grant decision, the appropriate mechanism is an application for IC review. If a person is concerned about an agency’s delay or lack of assistance, a complaint is more appropriate. The Commonwealth Ombudsman retains authority to investigate complaints against agency action under the FOI Act, although it is expected that the OAIC will deal with most FOI complaints (see Part 11).

1.20 The Information Commissioner also has the power to declare a person to be a vexatious applicant. The Information Commissioner may exercise that power if satisfied that a person has engaged in FOI access actions that involve an abuse of process or if a particular request or application is manifestly unreasonable. Before making such a declaration, the Commissioner must invite the person involved to make a submission (see Part 12).

1.21 The Information Commissioner must prepare an annual report, for presentation to the Minister for Privacy and Freedom of Information and tabling in Parliament, covering a range of FOI and privacy matters (s 30 of the Australian Information Commissioner Act). Agencies must provide the Information Commissioner with the information needed to prepare the report (s 93 of the FOI Act).

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Coverage of the FOI Act

Agencies and contracted service providers

1.22 Most Australian Government agencies are subject to the FOI Act, the general rule being that the Act applies unless it is expressed not to apply. Agencies subject to the Act include:

  • all Departments of State (that is, departments of the Australian Public Service)
  • an agency that is a ‘prescribed authority’, which covers most other Australian Government agencies that are not Departments of State, and in particular agencies that are subject to either the Financial Management and Accountability Act 1997 or the Commonwealth Authorities and Companies Act 1997.

1.23 Agencies that are exempt from the FOI Act (s 7 and Schedule 2 of the Act) include the Auditor-General; security intelligence agencies such as the Australian Security Intelligence Organisation (ASIO) and the Inspector-General of Intelligence and Security; and certain defence intelligence agencies (see Part 2).

1.24 Some agencies are exempt in relation to particular documents – for example, the Australian Broadcasting Corporation in relation to program material, Comcare in relation to its commercial activities, and the Department of Defence in relation to documents covering the collection, reporting or analysis of operational intelligence or special access programs (s 7 and Schedule 2).

1.25 The Act has been extended to cover some documents created or held by a contractor or subcontractor relating to the provision of services to the public or third parties on an agency’s behalf (s 6C). An FOI request relating to such documents must be made to the agency. Agencies must ensure that all relevant contracts entered into on or after 1 November 2010 include provisions that enable the agency to obtain from the contractor or sub-contractor any document relating to the performance of the contract so as to meet the request (see Part 2).

Documents

1.26 The right of access enshrined in the FOI Act applies to ‘documents’. This term is defined in s 4(1) to include maps, photographs, and any article from which sounds, images or writing are capable of being reproduced (for example, emails). There is no general obligation on agencies to reduce information to written documentary form in order to facilitate an FOI request, except in relation to information that is stored on a computer tape or disk (s 17).

1.27 If a request for a document is made, the document must be disclosed unless one of the exemption provisions applies. The right of access is also limited in certain circumstances, such as where a statutory scheme establishes a right of access to a document, subject to a fee or charge (such as a land title register), or an agency has an arrangement that allows a member of the public to purchase the document (see Part 3).

Extension of the FOI Act to Norfolk Island

1.28 The Territories Law Reform Act 2010 was passed by Parliament on 26 November 2010, and received assent on 10 December 2010. The Act extends the application of the FOI Act to Norfolk Island, including by amending the definition of ‘agency’ to include a ‘Norfolk Island authority’. The right to access documents will only apply to documents of a Norfolk Island Authority and official documents of a Norfolk Island minister that are five years old or less when the provisions commence, subject to some limited exceptions. The provisions are to commence on 1 January 2011, with the exception of the Information Publication Scheme requirements which will apply to Norfolk Island authorities from 1 May 2013.

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References in the guidelines

1.29 A reference to a paragraph is to a paragraph of text in the same Part of the guidelines. A reference to a section is to a section of the FOI Act or other Act as specified.

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Footnotes

[1] Australian Law Reform Commission and Administrative Review Council, Open government: A review of the federal Freedom of Information Act 1982, Report No 77, 1995.

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