Statement issued by the Australian Information Commissioner to supplement an amendment to Part 3 of the Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982
- Section 15 of the Freedom of Information Act 1982 (FOI Act) provides that ‘a person’ may request access to a document of an agency or official document of a Minister. In similar terms s 11 provides that ‘every person’ has a legally enforceable right to obtain documents under the Act.
- I have been approached by agencies for advice on whether a request can validly be made under s 15 by a group of people or an unincorporated association, or whether the right to make a request is confined to an individual or a body corporate or politic (that is, a legal entity). The Australian Information Commissioner Act 2010 s 8 provides that I may, as a ‘freedom of information function’, provide information, advice or assistance to any person or agency on matters relevant to the operation of the FOI Act. I may also issue guidelines under s 93A of the FOI Act, to which ‘regard must be had’ for purposes connected to the performance of functions and the exercise of powers under the FOI Act. More generally, my role is to promote efficient FOI processing that meets the Parliament’s objective to facilitate public access to government information.
- I have decided to address the issue that has been raised by amending Part 3 of the Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (see in particular paragraphs 3.6–3.8, 3.34–3.41). This statement supplements that amendment and provides further explanation and advice. This statement is not formally part of the Guidelines issued under s 93A.
- The opinions that I express in the guidelines and in this statement are at odds with two rulings of the Administrative Appeals Tribunal: Re Apache Energy Pty Ltd and National Offshore Petroleum Safety and Environmental Management Authority  AATA 296 (Apache) (Senior Member Fice), and CKI Transmission Finance (Australia) Pty Ltd; HEI Transmission (Australia) Pty Ltd and Australian Taxation Office  AATA 654 (CKI) (Deputy President Forgie).
- Both AAT decisions express the same view, in different contexts, that an FOI request under s 15 of the FOI Act can be made only by an individual or single person (including a body corporate or politic). My contrary view is that ’an FOI request may be made by one person on behalf of another person, by an organisation on behalf of a client, by a person as the agent or representative of a group of individuals or corporate bodies, or by a group of individuals or corporate bodies or an unincorporated association’ (paragraph 3.37).
- Both AAT cases arose under the provisions of the FOI Act that were in operation prior to the amendments that commenced on 1 November 2010. Some FOI Act provisions relied upon in both cases were altered in 2010, although the references in ss 11 and 15 to a ‘person’ having a legal right to make an FOI request are unchanged. The Tribunal in Apache observed (at ) that the 2010 amendments would not alter the findings in that case. Similarly, in CKI the Tribunal referred to the 2010 amendments but in terms that suggest they would not alter its findings.
- In this statement I place considerable reliance on the 2010 amendments to the FOI Act. In the remainder of this statement I summarise the decisions in Apache and CKI, explain why I take a contrary view, and explain how the Office of the Information Commissioner (OAIC) will implement this advice.
Re Apache Energy Pty Ltd and National Offshore Petroleum Safety and Environmental Management Authority
- In Apache a request to an agency for access to documents was made in 2008 in the name of a firm of lawyers, and not in the name of any particular individual in that firm (although an individual was named as a contact person). A third party objected to disclosure of information relating to its business affairs that was contained in the relevant documents; it applied to the AAT for review of the agency’s decision to release the information. The law firm applied to the AAT to be made a party to the proceedings.
- The Tribunal ruled that an FOI request under s 15 could be made only by an individual, not a group of people or, in this case, a partnership that was an unincorporated business organisation. The Tribunal decided that the agency should have rejected the request as not being a valid FOI request, and required that a fresh request be made by an individual or legal entity. The proceedings were accordingly terminated by the Tribunal on the basis that no valid request had been made that could give rise to proceedings.
- The AAT ruling in Apache was strongly based on the difficulties and inconvenience that would stem from treating ‘person’ as a plural rather than a singular expression. Those difficulties included the following:
- An FOI request from a group of people for documents that contain personal information about one or more of the members of the group may result in less information being provided than if requests were made individually by members of the group. Similarly, an FOI request from a group for a document created prior to 1978 that contains personal information about one of the members of the group would be caught by the restriction in s 12(2)(a) of the Act, but not if the request was made individually by the member of the group to which the information relates.
- An FOI access charge applied to an FOI request from an unincorporated association could expose each member of the association to a liability to pay the charge. Similarly, it may be impossible to decide whether payment of a charge should be waived on the ground of financial hardship under s 29 of the Act when the applicant is a group of individuals.
- An agency could encounter serious administrative inconvenience and confusion in consulting with and assisting a group of people to reframe a request, notifying a group of the reasons for decision, facilitating inspection of documents by a group, collecting a charge from a group or making a decision on waiver of charges.
- Communication with an applicant that is a group of people would be difficult if the members of the group disagreed with each other, or there was a change in the composition of the group during the processing of the request.
- The Tribunal described those as ‘insurmountable problems’ (para ), ruling that it was contrary to the intention of Parliament to construe ‘person’ as a plural rather than a singular term. Those considerations displaced the presumption in s 23 of the Acts Interpretation Act 1901 (Cth), that ‘unless the contrary intention appears … words in the singular number include the plural’.
- None of these problems arise, the Tribunal stated, if a request is made by an individual. In fact, the individual may enjoy a greater level of access than a group to which the individual belongs, which is consistent with the objects of the FOI Act. To the extent that an individual may be concerned about being liable to pay a charge on behalf of a group, the individual could enter into a private costs agreement with other members of the group. The individual and the group could also reach agreement about applying for internal or external review of an agency decision denying access.
- The AAT in Apache referred to CKI and noted that it was decided after the hearing in Apache but before a decision was delivered. The Tribunal expressed agreement with the views expressed in CKI.
CKI Transmission Finance (Australia) Pty Ltd; HEI Transmission (Australia) Pty Ltd and Australian Taxation Office
- Two related entities made separate FOI requests in 2008 to the Australian Taxation Office for access to similar documents. Both requests were submitted under cover of the same letter, though each paid a $30 FOI application fee. The ATO made a single decision referring to both requests. The solicitor acting for both applicants made a single application for internal review of the ATO decision, and subsequently a single application for AAT review of the ATO decision.
- The Tribunal held that the right to make an FOI request is exercisable only by a single person, who may not exercise the right in concert with others by making a single request. Only that person can apply for review of the agency’s decision. In this case, separate applications should have been made to the AAT by both applicants, including payment by each of the application fee (then $777).
- The reasoning in CKI includes statements similar to those in Apache, that a single request cannot be made by more than one person. Those statements were integral to the conclusion that both applicants could not apply jointly for AAT review of the agency’s decisions on each of their FOI requests. The decision was based on ’the ordinary meaning of the right of access created by s 11(1) of the FOI Act, the need to take account of all the words used by the legislature, the compass and limits of the right of access, the duties of an agency or Minister to whom a request is made, and the practical difficulties that arise from any other interpretation and the substance and tenor of the FOI Act as a whole’ (para ).
- The matters referred to by the Tribunal in support of its findings included the following:
- The statement in s 11 that ′every person has a legally enforceable right to obtain access’ to documents is framed upon a person’s right in the singular sense.
- The boundaries of the right of access must be defined on each occasion that a request is made to an agency or Minister. The right only extends to a document of the agency or official document of the Minister; it does not extend to exempt documents; and there are procedural steps that may require an agency or Minister to communicate with an applicant.
- The focus of the task faced by an agency or Minister is to make ′a decision on the request’. Although that decision may be made up of a number of subsidiary decisions, the Act does not envisage multiple decisions being made on a request. That would be the consequence, however, if a group makes a request for documents that contain personal or business information about only one of them; if the members of a group cannot agree on being given access to a document with deletion of exempt or irrelevant material; if a group requests a document that contains personnel information about one of the members, who may be required by s 15A to first request access under an administrative access scheme; or if a financial hardship waiver of FOI charges might relate to one but not other members of a group.
Explanation for the amendment of Part 3 of the Guidelines
- The starting point is that the FOI Act does not directly state that a request must be made by a single entity or can be made by a group, a partnership or an unincorporated association. The expression in s 15 is that ‘a person’ may request access to a document. The presumption is that words in an Act ‘in the singular number include the plural’, unless there is a contrary legislative intention.
- Many features of the FOI Act, especially since the 2010 amendments, are compatible with (and support) an obligation upon agencies to accept a request made by more than one person. The objective of the Act is to make it easy for the public to make requests and for agencies to act promptly on those requests. A request can be made in writing, and since 2010 by electronic communication (email) (s 15(2A)). There is no special form that must be followed, other than that the request must be in writing, state that it is an FOI request and provide an address for notices, which may be an email address (s 15(2)). One person can make a request on behalf of another (s 29(5)(a)). The applicant need not be resident in Australia or be an Australian citizen or resident.
- The Act does not require an applicant who is a natural person to provide proof of identity; nor does it require a corporate body to establish that it is a legal entity. The Act does not prevent a natural person using a pseudonym. Unless statute provides otherwise, it is generally open to a natural person to use a pseudonym, including in relations with government. This common law principle is reflected in amendments to the Privacy Act 1988 that commence operation in March 2014. A new Australian Privacy Principle 2 (APP 2) provides that an individual has the option when dealing with an entity to which the Privacy Act applies ‘of not identifying themselves, or of using a pseudonym’. Two exceptions to APP 2 are when an entity is required or authorised by a law or court or tribunal order to deal with an identified individual or it is not practicable to deal with an individual who is not identified. Those exceptions may apply to some FOI requests, but not in all instances.
- Those considerations suggest that an agency should accept on face a request that is received by mail or email. The FOI Act is to be administered, ‘as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost’ (s 3(4)). That object will best be met if, wherever practicable, agencies accept and respond to requests without any threshold enquiry as to the identity or legal personality of the applicant: the agency’s focus should be upon the request, not the requester. An enquiry into the applicant’s legal status or identity is required by Apache and CKI, as illustrated by the ruling in Apache: the Tribunal ruled in May 2012 that a request lodged in September 2008 was not a valid request and could not give rise to proceedings under the Act for review of the agency’s decision.
- It will not always be apparent to an agency whether a request is lodged by an individual or by a group of people, especially if a request is lodged by email or is on the letterhead of a firm or organisation. Many email addresses reveal little about the legal status or personality of the person who forwarded the email. Nor will a letterhead necessarily disclose if a firm or organisation is incorporated. A contact name in the email or on the letter may not – applying Apache and CKI – relieve an agency of its obligation to enquire as to the legal personality of the applicant. A contact name was provided in both cases, but the outcome nonetheless in both cases was that the proceedings before the Tribunal were discontinued and would have to be recommenced.
- The FOI Act goes further than merely declaring that requests should be administered promptly and to facilitate public access. An agency is required to acknowledge a request within 14 days and make a decision on the request within 30 days, subject to some extensions (s 15(5)). Failure to do so means that the agency cannot impose an access charge (Freedom of Information (Charges) Regulations 1982, reg 5(2),(3)). Agencies are also required to notify the Information Commissioner if an applicant agrees to a processing extension of ‘no more than 30 days’ (s 15AA). Longer extensions require the approval of the Information Commissioner (ss 15AB, 15AC). It would run counter to that emphasis on prompt administration if, at the threshold, an agency had to be satisfied in every case that a request was lodged by an individual or legal entity.
- It is consistent both with the objects and with the detailed provisions of the FOI Act that an agency can accept a request from a group of people. The central purpose of the Act is to provide a mechanism whereby documents and information can be made available upon request, notwithstanding that legal issues may arise that need to be resolved by discussion between the agency and the requester or through independent review. The Act is designed to supplement other means of making government information available to the public. These include proactive publication of information by government agencies through the Information Publication Scheme (Part II), and release of information and documents apart from the Act (s 3A(2)).
- As noted earlier, the FOI request process commences when an agency receives a request that is in writing, states that it is an FOI request and provides an address for notices. Legal issues may arise during the processing of a request, but for the most part they will be of three kinds: has the applicant provided a sufficient description of the documents to enable a responsible officer to identify them (s 15(2)(b)); do the documents qualify for exemption under Part IV of the Act, and if so, should third party consultation be undertaken (ss 26A,26AA, 27, 27A); and has the applicant paid any access charge assessed by the agency under the Charges Regulations (s 11A)? An agency is under a duty to provide access in accordance with the Act when those conditions are satisfied (s 11A(3)).
- Those issues, while not providing a complete picture of FOI Act issues, set the boundaries for providing public access upon request in a simple, informal and expeditious fashion. Agencies also have discretion not to impose an access charge and to provide access to exempt documents. The Act is designed ‘to facilitate and promote public access to information’ (s 3(4)), not to set in train a formal process that is premised in all cases upon verification that the legal rights of applicants and the legal duties of agencies have been correctly invoked and delineated. This is illustrated by Corrs, Pavey, Whiting and Byrne v Collector of Customs (Vic) (1987) 14 FCR 434, in which a request made by a firm of solicitors was finally resolved by a decision of the Full Court of the Federal Court, without the legal status of the applicant being raised during the proceedings.
- The practical difficulties discussed in Apache and CKI that could arise when a request is made by more than one person are not insurmountable. In the first place, it should not be assumed that it will be common for a group to request access to documents that contain personal or business information about one member of the group. If that did occur it would be a straightforward matter for an agency to contact the applicant to explain that the information may be exempt so far as that particular FOI request is concerned, but that it is open to the individual involved to make a separate FOI request and that there is no application fee to do so. This would be consistent with the legal duty of the agency to facilitate and promote public access (s 3(4)) and to take reasonable steps to assist a person to make a request that complies with the Act (s 15(3)).
- Some other practical issues connected to group requests could be resolved in the same consultative manner. For example, a group applicant can be advised that it has a weak claim for waiver of FOI charges on the ground of financial disadvantage, but that individual members of the group are not prevented from raising this matter individually through the FOI request process. Similarly, in IC review the OAIC is frequently in contact with FOI applicants to discuss procedural steps and options for resolving matters, and at times seeks clarification of a person’s authority to represent an organisation or their relationship to a group.
- In other instances an agency may need to advise a group applicant that it is practically difficult to process its request and that a fresh request or requests from members of the group may be needed. An example would be the (assumedly, rare) instance that a group made a request for documents that contain personnel information about one member of the group and that is covered by the obligation in s 15A to use a published administrative access scheme before resorting to the FOI Act. Another example would be where the members of the group disagree among themselves and provide conflicting advice to an agency about the scope of the request or the form in which access is to be provided.
- The Guidelines that I have issued under s 93A acknowledge these points, stating that:
3.8 There may nevertheless be a need for an agency or minister — or, on review, the Information Commissioner — to elicit information about the identity or legal personality of an applicant when a request is made by an agent or representative, by a person using a pseudonym or by an organisation or group of people. Similarly, it may be problematic to continue processing a request or deciding a review application that is made by an organisation or group of people unless an agency or Minister or the Information Commissioner can communicate with a contact person who has authority to represent the organisation or group.
- It is commonplace that unexpected and novel issues arise in administering statutory schemes, especially a scheme as expansive as the FOI Act that confers a legal right upon ‘every person’ to seek access to nearly any document in the possession of an Australian Government agency or Minister. Difficult practical issues arising under the FOI Act do not of themselves evince a contrary legislative intention that the word ‘person’ is not a plural as well as a singular expression. The central objective of the FOI Act is clear, to provide public access to government information in a prompt, inexpensive and uncomplicated fashion.
- Nor is it exceptional that administrative law rights of request, complaint and review can be exercised by unincorporated groups or associations. The Administrative Appeals Tribunal Act 1975 provides that an application to the Tribunal for review of a decision can be made by ‘an organisation or association, whether incorporated or not, [that] has interests that are affected by a decision’ (s 27(2)). The Ombudsman Act 1976 defines the function of the Ombudsman as one of investigating ‘action that relates to a matter of administration … in respect of which a complaint has been made to the Ombudsman’; the Act speaks of the complaint to the Ombudsman being made ‘by a complainant at the request of another person or a body of persons’ (s 6(5)). The Australian Human Rights Commission Act 1986 s 46P provides that a complaint of unlawful discrimination may be lodged by a person aggrieved, ‘on that person’s own behalf [or] on behalf of that person and one or more other persons who are also aggrieved [or] by 2 or more persons aggrieved … on their own behalf [or] on behalf of themselves and one or more other persons who are also aggrieved’. The Privacy Act 1988, which enables individuals to complain about privacy breaches, provides that ‘in the case of an act or practice that may be an interference with the privacy of 2 or more individuals, any one of those individuals may make a complaint … on behalf of all of the individuals’ (s 36(2)).
- One final issue raised in Apache is that allowing requests to be made by an unincorporated association could expose each member of the association to a liability to pay an access charge. I do not agree with that assumption. It is not clear, and has never been authoritatively resolved, whether a charge assessed by an agency under the FOI Charges Regulations is a debt due to the Commonwealth that can be recovered by an agency. While the FOI Act states that an agency may decide ‘that an applicant is liable to pay a charge’ and an applicant may signify ‘agreement to pay the charge’ (s 29(1)), other elements necessary to create a debt due are either absent or uncertain. For example, the FOI Act does not declare that an assessed charge is a debt due to the Commonwealth; it does not confer jurisdiction upon any court to enforce a debt; an assessed charge is not necessarily an ascertained or settled amount; and the FOI Act provides its own limited mechanism to ensure that assessed charges are paid, namely that an agency is not required to provide access to non-exempt documents until the charge is paid (s 11A(1)(b)).
- Consistently with this advice, the OAIC will not reject a complaint or application for Information Commissioner review on the basis that the FOI request in question was made by a group of people or by an unincorporated association.
- I urge agencies to follow the same practice, and I draw attention to the requirement in s 93A(2) of the FOI Act that agencies must have regard to any opinion that I have expressed in a guideline issued under that section, concerning the performance of functions and the exercise of powers under the Act.
- If a party to an IC review raises as an issue whether a request can be made by a group of people or an unincorporated association, the Commissioner with carriage of the case will decide whether it is necessary to rule upon it. An option available to the Commissioner will be to refer this as a question of law to the Federal Court of Australia for decision under s 55H of the FOI Act. A Commissioner cannot make a decision that is inconsistent with an opinion of the Court in a referred matter (s 55H(5)(b)).
 Acts Interpretation Act 1901 ss 2C, 23. The AIA was amended following Apache, and the principle formerly stated in s 23 is now expressed unchanged in ss 2C and 23.
 Re Lordsvale Finance Ltd and Department of the Treasury  AATA 174.
 Another technical issue relied upon in Apache was that the restriction in s 12(2)(a) of the Act on providing access to documents created more than five years before the commencement of Part III of the FOI Act, did not apply to a document that contains personal information about the applicant. That provision was amended in 2010 to apply only to Norfolk Island government records. Furthermore, it is doubtful that there was much room for the operation of the provision prior to that amendment, as the Australian Government records to which the provision applied in 2010 would most likely be in the care of the National Archives of Australia (being created prior to 1978) and thus not available for access under the FOI Act: ss 12(1), 13(1).
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