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FOI agency resource 6: Making a decision on an FOI access request

September 2011

This checklist aims to help decision makers to identify the key steps in making a decision on a request for access to documents under the Freedom of Information Act 1982 (FOI Act). You should refer to the FOI Guidelines for full details: Part 8 (Decisions on FOI requests).

Preliminary steps

checkbox Make sure you have authority to make decisions under the FOI Act for your agency. Check your agency’s authorisation instrument made under s 23 if you are uncertain.

checkbox Make sure you are clear about the timeframes you need to meet.

Analyse

checkbox Analyse the terms of the request broadly, avoiding a technical or legalistic approach.

checkbox If the request is too vague or seems too large to be able to be processed, consult the applicant as soon as possible to clarify the request or see if the scope can be narrowed.

Locate relevant material

checkbox Identify and collate the documents that are in the scope of the request.

Consider transfer

checkbox If relevant documents originate from another agency, consider whether a transfer of part or all of the request is appropriate. Consult the relevant agency as soon as you consider transfer is a possibility – processing time does not stop.

checkbox If relevant documents originate from an intelligence agency, you must transfer the request or the relevant part of the request to the responsible portfolio department.

Calculate charges

checkbox If you decide to impose a charge for processing a request and providing access to documents, the charge should fairly reflect the work involved.

checkbox Give the applicant an estimate of the charge and how it was calculated. You can ask for a deposit of 25% of the total ($20 if the estimate is less than $100).

checkbox You can reduce or waive a charge on the grounds of financial hardship, public interest or other relevant reasons.

Consult

checkbox If you are thinking of releasing documents that originate from or contain information of a third party who has a right to be consulted, undertake consultation under ss 26A, 26AA, 27 or 27A. Advise the applicant that the processing time is extended by 30 days.

checkbox 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 and preferable decision. The processing time is not extended for this consultation.

Assess and decide

checkbox Determine the relevant facts. Make sure any findings of fact you rely on for your decision are supported by the documents you have collected and the available evidence.

checkbox If claiming an exemption, make sure the facts of the case clearly establish the necessary elements. If there is doubt, reconsider whether you should claim the exemption.

checkbox If claiming a conditional exemption, make sure the facts of the case clearly establish the elements of the conditional exemption, and then apply the public interest test. If the test does not clearly establish that disclosure would be contrary to the public interest, you must release the document unless another exemption applies.

checkbox Consider whether it is possible to delete the exempt material from the documents and provide an edited version to the applicant.

Notify

checkbox Send the applicant a statement of reasons that explains your decision and the reasons for it. (See the statement of reasons checklist.)

Provide access

checkbox If you have decided to allow access to documents in accordance with the request, collect any outstanding charges first.

checkbox Provide access, in the form the applicant requested, as soon as possible, unless a third party was consulted under ss 26A, 26AA, 27 or 27A during the processing stage. If a third party objected to the release of a document, do not release it until all the third party’s options for review of the decision have run out.

checkbox You can give access in a different form in certain circumstances (s 20).

checkbox You may defer access in certain circumstances (s 21). Consider also if a person’s access to their own personal information should be given instead to a qualified person (s 47F).

Publish

checkbox Consider whether you need to publish the information that you have released in your agency’s disclosure log. The following information does not need to be published in a disclosure log, if publication would be unreasonable:

  • personal information about any person
  • information about any person’s business, commercial, financial or professional affairs
  • other information of a kind determined by the Information Commissioner (any determinations will be published on the Office of the Australian Information Commissioner’s website)
  • any information that is not reasonably practicable to publish because of the extent of modifications needed to delete the material listed above.

checkbox Publish any other information you have released to an applicant within 10 working days of giving access.

For further information

telephone: 1300 363 992
email: enquiries@oaic.gov.au
write: GPO Box 5218, Sydney NSW 2001
Or visit our website at www.oaic.gov.au