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Request for access under the Freedom of Information Act 1982 (Cth)

Request for access under the Freedom of Information Act 1982 (Cth)

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This precedent has been authored by Dr Damien J Cremean, Adjunct Professor, University of Queensland

. Introductory note

This precedent is a request for access under the Freedom of Information Act 1982 (Cth).

Legislation

Legislation providing for freedom of information is in force in the Commonwealth and in all states and territories under various names.

The Commonwealth Act is the Freedom of Information Act 1982 (Cth) (Cth FOI Act). State and territory Acts are:

• Freedom of Information Act 1989 (ACT); • Information Act 2002 (NT);

• Government Information (Public Access) Act 2009 (NSW); • Right to Information Act 2009 (Qld); • Freedom of Information Act 1991 (SA);

• Right to Information Act 2009 (Tas);

• Freedom of Information Act 1982 (Vic); and

• Freedom of Information Act 1992 (WA).

The Commonwealth Act has served as the base model for all of these laws. It has, however, been amended by the Freedom of Information Amendment (Reform) Act 2010 (Cth). But variations occur now between that Act and those laws. Indeed, as between the various states and territories there are now significant areas of difference as well, due to amendments.

The particular state or territory law in question should be consulted if a state or territory matter is in issue, ie if information is sought at state or territory or local government levels, or from a state or territory agency, the relevant state or territory law must be consulted.

Information that may be accessed

In seeking access, it is important always to be precise about the information which is being sought. A request for access to information in a document is liable to be rejected or returned if the request is vague or ill defined. It is necessary to be precise about dates or the names of individuals or about the exact position(s) they occupy in an organisation. It will also be necessary to be very exacting in the description of the document(s) containing the information sought. Requests for access to voluminous documents should, as a rule, be avoided. Well targeted requests to quite specific documents are more likely to be effective.

Commonwealth

The Cth FOI Act provides every person with a legally enforceable right to obtain access to (section 11(1)):

• a "document of an agency" (other than an exempt document); and

• an "official document of a Minister" (other than an exempt document).

This right, however, may only be exercised in accordance with the Cth FOI Act. A person's right of access is not generally affected by either (section 11(2)):

• the reasons the person gives for seeking access; or

• the agency's or the Minister's belief as to what the person's reasons for seeking access are.

The Cth FOI Act distinguishes between exempt documents and conditionally exempt documents.

States and territories

State and Territory laws are broadly similar to the Cth FOI Act, but do not distinguish between exempt documents and conditionally exempt documents.

Australian Capital Territory: by the Freedom of Information Act 1989 (ACT) every person is given a legally enforceable right to obtain access (in accordance with the Act, and subject to it) to:

• a document of an agency, other than an exempt document; and

• an official document of a Minister, other than an exempt document: section 10.

Northern Territory: The Information Act 2002 (NT) (NT FOI Act) gives every person an enforceable right to access "government information" other than another person's personal information: sections 15 and 16(a). By section 18(1) any person may apply to a public sector organisation for government information held by the organisation including for personal information relating to that person. “Government information” is defined as a record held by or on behalf of a public sector organisation: section 4. The NT FOI Act draws a distinction between information that is exempt because it is not in the public interest to disclose it (section 44) and information that is exempt only if it can be shown in the particular case that it is not in the public interest to disclose it (section 50).

New South Wales: The Government Information (Public Access) Act 2009 (NSW) (NSW FOI Act) requires government information held by an agency to be that agency's open access information which must be made publicly available: section 18. By section 12(1) of the NSW FOI Act, there is declared to be a general public interest in favour of the disclosure of government information. "Government information" means information contained in a record held by an agency: section 4(1). Under section 9(1), a person who makes an access application for government information has a legally enforceable right to be provided with such access unless there is an overriding public interest against disclosure. In summary, there is in NSW, a presumption in favour of disclosure of information sought unless there is an overriding public interest consideration against disclosure. See: Cousins v Ambulance Service of New South Wales [2014] NSWCATAD 48 at [66].

Queensland: The Right to Information Act 2009 (Qld) (QLD FOI Act) specifies that a person has a right to be given access to documents of an agency or a Minister: section 23(1). This right is expressed to be "subject to" the QLD FOI Act. By section 44(1) there is a pro-disclosure bias expressly favoured - that is, access should be given unless doing so would, on balance, be contrary to the public interest.

South Australia: No such pro-disclosure bias is to be found specified in the Freedom of Information Act 1991 (SA) (SA FOI Act). But one of the objects of that SA FOI Act is to promote openness in government (section 3(1)(a)) and one of the ways intended to achieve this is by ensuring that information concerning the operations of government is made readily available (section 3(2)(a)). Another way is to confer on each member of the public a legally enforceable right to be given access to documents held by the government, subject only to such restrictions as are consistent with the public interest: section 3(2)(b). By section 12 of the SA FOI Act, every person has a legally enforceable right to be given access to an agency's documents in accordance with the SA FOI Act.

Tasmania: The Right to Information Act 2009 (Tas) (Tas FOI Act) is similarly expressed. One of the objects of the Tas FOI Act is to increase the ability of the people of Tasmania to participate in their governance: section 3(1)(b).This object is pursued by giving members of the public the right to obtain information held by public authorities and Ministers and about the operations of government: sections 3(2) and (3). By section 7 of the Tas FOI Act, a person has a legally enforceable right to be provided information in the possession of a public authority or a Minister unless that information is exempt.

Victoria: The Freedom of Information Act 1982 (Vic) (Vic FOI Act) section 13 gives every person, subject otherwise to the Vic FOI Act, a legally enforceable right to obtain access to a document of an agency or an official document of a Minister - in either case, other than an exempt document. The Vic FOI Act specifies that it is Parliament's intention that the Vic FOI Act be interpreted so as to further the object of ensuring community access to information.

Western Australia: The Freedom of Information Act 1992 (WA) (WA FOI Act) specifies in section 10(1) that a person has a right to be given access to documents of an agency (other than an exempt agency). This, in accordance with section 3(2)(a), achieves one of the objects of the WA FOI Act; namely, to enable the public to participate more effectively in governing the state: section 3(1)(a). As provided by the Cth FOI Act, the WA FOI Act specifies that a person's right to be given access is not affected by either any reasons the person gives for wishing to obtain access or an agency's belief as to a person's reasons for wishing to obtain access: sections 10(2)(a) and (b).

How to obtain access

Requests should be succinct and well defined.

Commonwealth

A person who wishes to obtain access to a document of an agency or an official document of a Minister may request access to it: section 15(1) of the Cth FOI Act. The request must (see section 15(2)):

• be in writing; • state that it is one made for the purposes of the Cth FOI Act;

• provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency or the Minister to identify it; and

• give details of how notices may be sent to the applicant (eg email address).

The request for access may be sent in a number of ways: see section 15(2A). If any agency receives a request that does not conform to one of these ways, it has a duty to assist the person to ensure his or her request does comply with requirements: section 15(3).

Receipt of a request must be acknowledged within 14 days: section 15(5)(a). No later than 30 days after receiving a request, the agency or Minister must take all reasonable steps to ensure the applicant is notified of a decision: section 15(5)(b).

In relation to personnel records, a person can only apply under section 15 for access if the conditions specified in section 15A(2) are met. "Personnel records" are records containing personal information about a person for personnel management purposes: section 15A(1).

States and territories

Australian Capital Territory: The Freedom of Information Act 1989 (ACT) specifies that a person may request access to a document by applying in writing: section 14(1). The request must provide sufficient detail to identify the document: section 14(2). An agency must take reasonable steps to assist a person to make a request in the manner specified: section 14(3)(a). The applicant must be notified of a decision on the request as soon as practicable but no later than 30 days after the request is received: section 18(1)(d).

Northern Territory: The Information Act 2002 (NT) requires an application for access to be in writing and to specify (see section 18(2)):

• the name of the applicant;

• an address for return correspondence: and

• sufficient details to identify the information to which access is sought. Before an application is accepted, the public sector organisation in question must satisfy itself as to the identity of the applicant: section 18(3). A fee must be paid: section 18(2A).

The application must then be considered and a decision notified within 30 days: section 19(1).

New South Wales: The Government Information (Public Access) Act 2009 (NSW) requires an application for access to (see section 41(1)):

• be in writing (sent to or lodged at an office of the agency concerned);

• state a postal address for correspondence;

• clearly indicate that it is an access application made under the Act;

• be accompanied by the relevant fee; and

• include such information as is reasonably necessary to enable the information sought to be identified.

An application may include any submissions about public interest considerations for the relevant agency to take into account: section 42(a).

The agency must make a decision on the application, and give notice of it, within 20 days after the application is received but this period can be extended for up to 10 or 15 days: section 57(1), (2).

Queensland: By the Right to Information Act 2009 (Qld) the application must (section 24):

• be in the approved form;

• be accompanied by the application fee;

• state a return address;

• give sufficient information to identify the document; and

• (in the case of access to documents containing personal information) include evidence of identity. The processing period for an application is 25 business days: section 18.

South Australia: Under the Freedom of Information Act 1991 (SA) an application must (section 13):

• be in writing;

• specify that it is made under that Act;

• be lodged at an office of the agency concerned;

• specify a return address;

• be accompanied by the fee payable; and

• contain sufficient information to identify the requested document.

The agency must assist an applicant to ensure that the application contains sufficient identifying information: section 15. The application must be dealt with as soon as practicable and not later than 30 days after being received: section 14(2).

Tasmania: By the Right to Information Act 2004 (Tas) a person must make a written application for an assessed disclosure of information which contains the minimum prescribed information: see sections 13(2) and (3). The Right to Information Regulations 2010 (Tas) state that an application must (regulations 4):

• contain the name and address of the applicant and daytime contact details as well as any required proof of identity;

• specify the general topic of the application, the details of the information sought and details of any efforts undertaken beforehand to obtain it; and

• be dated and signed.

Assistance must be given if requested or appropriate: section 13(8) of the Act. The relevant period for notification of the decision is 20 working days after the application is accepted: section 15(1).

Victoria: By the Freedom of Information Act 1982 (Vic) a person must make a request in writing for access to a document, accompanied by the fee payable, which provides such information concerning the document as is reasonably necessary to enable it to be identified: see sections 17(1), (2) and (2A).

Assistance must be given to enable a lawful request to be made: section 17(3). The decision on the application must be made as soon as practicable but no later than 45 days after the request is received: section 21.

Western Australia: Under the Freedom of Information Act 1992 (WA) an access application must (section 12(1)):

• be in writing;

• give a return address and any other required details;

• be lodged at an office of the agency in question together with any fee payable; and

• give enough information to enable the requested documents to be identified.

Reasonable steps must be taken to assist an applicant with a request: section 11(2). The permitted period for decision under the Act is usually 45 days (ie unless a longer period applies): section 13(3).