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Information is a valuable and powerful resource which is at the heart of every government decision and activity. Freedom of information (FOI) means the right of the public to access information Australian Government ministers and Australian Government agencies hold, including Norfolk Island agencies, with some exceptions. This right is promoted and enforced in the Freedom of Information Act 1982 (FOI Act). The FOI Act recognises that the information government holds is a national resource and is managed for public purposes, and that public access to it should be prompt and at the lowest reasonable cost.
Each state and territory also has a freedom of information law that covers the agencies of the state or territory.
What you can access under FOI
You can request access to a document held by an Australia Government agency or minister, such as:
- a document that contains your personal information
- a policy-making document
- an administrative decision-making document.
You can also ask an agency or minister to amend or annotate the personal information they hold about you.
What is a document?
The Freedom of Information Act 1982 (FOI Act) only applies to information an Australian Government agency or minister holds in the form of a document.
The FOI Act defines a document as:
- any paper or other material on which there is writing or a mark, figure or symbol
- electronically stored information
- a map, a plan, a drawing or a photograph
- any article from which sounds, images or writing are capable of being produced.
It also sets out what documents you can access and what documents you can’t access.
You can ask for access to a document in the form you prefer, such as in an electronic form rather than a hard copy.
Documents a minister holds
You can only request access to an official document of a minister. This doesn’t include a:
- personal document of theirs
- party political document
- document that relates to their electorate affairs.
A minister’s office is separate from the Australian Government agency the minister is responsible for. Any FOI request sent to the minister is handled by the minister’s office (a minister may authorise an employee to handle a FOI request). Even if a minister’s office asks the minister’s agency for help processing a FOI request, they’re still responsible for making sure the request is properly handled.
What you can’t access under FOI
You can’t access a document an Australian Government agency or minister holds that is:
- exempt under the FOI Act
- conditionally exempt under the FOI Act
- accessible to the public under other arrangements for a fee.
You can’t access a document held by an agency exempt from the FOI Act.
Exemptions
If a document is exempt under the FOI Act, an agency or minister can refuse to disclose it. Exemptions may apply to a document:
- that affects national security, defence or international relations
- of the Federal Cabinet
- that affects law enforcement and public safety
- where the secrecy rules of a law applies (for example, information collected under taxation, child support, gene technology and patent laws)
- where legal professional privilege applies
- that has material collected in confidence
- whose disclosure would be in contempt of parliament or in contempt of court
- disclosing trade secrets or commercially valuable information
- electoral rolls and related documents.
However, an agency or minister may decide to disclose a document even if an exemption applies.
Conditional exemptions
If a document meets a conditional exemption, the agency or minister must also decide if disclosing the document would be against the public interest. They can’t refuse access to a document solely because it meets a conditional exemption, it must also be against the public interest.
Conditional exemptions may apply to a document that has:
- personal information that would be unreasonable to disclose
- information about certain operations of the agency (such as an agency’s operations, audit, examination or employee management)
- information about the deliberative processes relating to an agency or minister’s functions
- information that could damage federal and state government relations
- information that may damage the Australian economy
- information about the Australian Government’s financial or property interests.
The public interest test
When deciding whether disclosing a document is against the public interest, an agency or minister must weigh up factors favouring access and those favouring non-disclosure.
Factors in favour of access are set out in the FOI Act. They include whether giving access will promote:
- the aims of the FOI Act (such as the scrutiny of government, inform debate, promote oversight of government spending)
- public participation in government decision-making.
The FOI Act also sets out what factors an agency or minister can’t take into account. For example:
- embarrassment to or loss of confidence in the government
- misunderstanding
- confusion or unnecessary debate
- seniority of the document’s author.
Documents accessible to public under other arrangements
FOI doesn’t cover:
- a document that is accessible to the public under the Archives Act 1983
- a document that is accessible to the public for a fee (such as a land title)
- 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.
Agencies exempt from FOI
The following agencies are exempt from disclosing a document in response to an FOI request:
- Aboriginal Land Councils and Land Trusts
- Auditor-General
- Australian Secret Intelligence Service
- Australian Security Intelligence Organisation
- Australian Signals Directorate
- Inspector-General of Intelligence and Security
- National Workplace Relations Consultative Council
- Office of National Intelligence
- Parliamentary Budget Office
- Australian Geospatial-Intelligence Organisation
- Defence Intelligence Organisation.
Some agencies are exempt from disclosing certain documents. For example, the ABC or SBS’s program material is exempt, and the NBN’s commercial activities are exempt.
