The Freedom of Information Act 1982 (FOI Act) provides a legally enforceable right of access to government documents. It applies to Australian Government ministers and most agencies, although the obligations of agencies and ministers are different.
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Why is FOI important?
The Australian Parliament first considered introducing freedom of information (FOI) legislation in the 1970s. In 1979, a Senate committee report outlined three reasons why FOI is important:
- FOI allows individuals to see what information government holds about them, and to seek correction of that information if they consider it wrong or misleading.
- FOI enhances the transparency 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.
These reasons are still valid today. More recently, a fourth reason for FOI has emerged — there is greater recognition that information gathered by government at public expense is a national resource and should be available more widely to the public. This idea was explicitly recognised through the reforms to the FOI Act in 2010.
What’s covered by FOI?
The FOI Act promotes government accountability and transparency by providing a legal framework for individuals to request access to government documents. This includes documents containing personal or other information, such as information about policy-making, administrative decision-making and government service delivery. Individuals can also request that ministers or agencies amend or annotate any information held about them.
The FOI Act:
- allows you to request access to documents held by Australian Government ministers and most agencies
- allows you to request that ministers or agencies amend or annotate any information they hold about you
- establishes an information publication scheme requiring agencies to publish online details about their functions and structure
- allows agencies and ministers to release documents that would be exempt under the FOI Act, unless prevented by a secrecy requirement in another law.
Documents covered by the FOI Act
You have a right of access under the FOI Act to a document held by government unless the document:
- is held by an agency exempt from the FOI Act
- falls under one of the exemptions in the FOI Act
- falls under one of the conditional exemptions in the FOI Act, and releasing the document would be contrary to the public interest
- is accessible to the public under other arrangements, whether at no cost or for a fee or charge.
Exemptions and conditional exemptions under the FOI Act
If a document falls under one of the FOI Act’s nine exemptions, an agency or minister can refuse to release it. Some of these exemptions include documents affecting national security, defence or international relations, documents affecting law enforcement and public safety, and Cabinet documents.
The FOI Act also contains eight conditional exemptions. Documents falling under a conditional exemption must be released, unless it would be contrary to the public interest to do so. Some of these conditional exemptions cover documents containing information that affects personal privacy, business information and certain operations of agencies (such as audits, examinations and personnel management).
For more information about exemptions and conditional exemptions, see FOI Fact Sheet 8 — Exemptions.
Documents accessible to the public under other arrangements
The FOI Act does not cover documents that are otherwise accessible to the public. This includes:
- documents available for access under the Archives Act 1983 (Cth)
- documents open to public access subject to a fee or charge
- the library, historical and museum collections of the Australian War Memorial, National Library of Australia, National Museum of Australia, National Archives of Australia and the National Film and Sound Archive.
Who is covered by FOI?
Most Australian Government agencies are subject to the FOI Act, and must release documents in response to an FOI request unless there is an overriding reason not to do so.
The FOI Act covers:
- Australian Government ministers
- most, but not all, Australian Government agencies
- the Administration of Norfolk Island.
Some agencies, such as intelligence agencies, are exempt from the FOI Act altogether. Others, such as some courts and tribunals, are exempt in relation to certain documents.
Requests to agencies and Ministers
You can request access to any document held by an agency. Requests to ministers, on the other hand, must relate to an ‘official document of a minister’. This means a document held by a current minister about the affairs of an Australian Government agency. It does not include a minister’s personal or party political documents, or documents about their electorate affairs. Ministers are also not subject to some of the proactive publication requirements the FOI Act places on agencies.
Some agencies, such as the six intelligence agencies, are wholly exempt from the FOI Act. Furthermore, all agencies are exempt from the FOI Act in relation documents received from or originating with those intelligence agencies.
Other agencies are exempt in relation to particular documents, such as the Australian Broadcasting Corporation in relation to program material. There are also several agencies, such as the courts, which are only covered in respect to administrative documents.
For more information on who is covered see Part 2 — 'Scope of the application of the FOI Act in our Guidelines to the Freedom of Information Act 1982 issued under s 93A of the FOI Act and the chart in FOI Agency Resource 12 — Defining an agency.
Other freedom of information jurisdictions
All Australian States and Territories also have freedom of information laws covering their public sectors.