Can I access a minister’s documents?
Yes. The Freedom of Information Act 1982 (FOI Act) gives every person a legally enforceable right to access an ‘official document of a minister’, unless the document is exempt from disclosure.
The term ‘document’ is broadly defined in the FOI Act and includes, but is not limited to, a piece of paper or other material on which there is writing, maps, drawings, photographs, sound recordings, films, video footage, messages on mobile devices and messaging applications, microfilm, and information stored on computer tapes, disks, DVDs and portable hard drives.
Under the FOI Act you can only ask for a document that exists at the time you make your FOI request. You can’t ask a for a document created after your request is made.
What is an official document of a minister?
An official document of a minister is a document in a minister’s possession that relates to the affairs of an agency. ‘Possession’ can include a document held in the minister’s office or a document that a minister is entitled to hold. A document may be an official document of a minister even if it is on a personal device.
‘Relates to the affairs of an agency’ is a broad term meaning that the document must relate to matters within the minister’s portfolio responsibilities or the activities of an agency.
What is not an official document of the minister?
Under the FOI Act, you cannot access documents held by a minister that do not relate to the affairs of an agency, such as:
- personal documents of a minister or the minister’s staff
- documents of a party political nature
- documents held in a minister’s capacity as a local member of parliament which do not deal with the minister’s portfolio responsibilities.
The content of a document and the context in which it is created or held will be important in determining whether it is an official document of a minister.
Will the minister process my FOI request?
Ministers are independent of their portfolio department for the purposes of the FOI Act and they (or their staff) are responsible for processing FOI requests made to them.
However, sometimes the relevant department will provide assistance in processing FOI requests made to a minister. For example, they may search for documents if they share resources (for example, resources for storing ministerial correspondence).
There may be some cross-over between official documents held by a minister and documents held by the department. Sometimes, FOI requests made to a minister can be transferred to the department if the subject matter of the documents is more closely connected to the department’s functions.
The FOI Act requires a minister to adopt a reasonable approach in interpreting your request. If your request is for official documents of a minister, the minister must take ‘all reasonable steps’ to find the official documents you have asked for. After taking all reasonable steps, if the minister is satisfied that the documents do not exist, they can refuse your FOI request.
What happens if there is a new minister?
The FOI Act gives you a right to access official documents in the possession of a minister. If a new minister is appointed, some documents will be transferred from the former minister to the new one. However, not all documents will be transferred to the new minister. Some documents may be transferred to the National Archives of Australia, while others may be destroyed.
If the new minister does not hold the documents you asked for, your FOI request can be refused because the documents are no longer in the possession of a minister, and they are therefore not official documents of a minister.
The National Archives: General Records Authority 38 applies to all ministerial records, including ministerial diaries. This Records Authority requires documents with ‘Retain as National Archives’ status to be transferred to the National Archives for safekeeping, and allows other documents to be destroyed when the Minister leaves office. General Records Authority 38 is available on the National Archives’ website at www.naa.gov.au.
What are my review rights and how does a review work?
You can ask the Information Commissioner to review a minister’s decision if you disagree with the decision made in response to your FOI request. You cannot seek internal review of a minister’s decision.
Information about applying for Information Commissioner review (IC review) is available on the Office of the Australian Information Commissioner website at oaic.gov.au/information-commissioner-review.
If a minister is a party to an IC review and there is a change of minister during the course of the review, the new minister becomes the respondent, if the requested document is in the possession of the new minister.
If the requested document is not in the possession of the new minister, the FOI Act does not apply and the IC review cannot continue because the document is no longer an official document of a minister.
On accessing information under freedom of information
Options for accessing current and older documents
Make a freedom of information request
Anyone can make an FOI request but it must be in writing
Other ways to access an agency’s information
Agencies are encouraged to release information proactively