1. Making an application
- Apply in writing to the agency concerned. In most agencies there is a person nominated as the FOI Coordinator who will assist you. No special forms are required – a letter will do.
- Identify or describe the documents concerned, or if you apply for amendment of personal information about yourself you must provide details to show how or why the agency’s records are inaccurate, incomplete, out of date or misleading; If you ask for “everything” on a particular subject, the agency may help you narrow the scope of your application to ensure that the work involved is reasonable. Otherwise an agency may refuse to deal with your application.
- Give an address in Australia where notices can be sent. If possible, include your telephone number/fax number/email address as this will help the agency to contact you if necessary, to assist in your application being dealt with efficiently.
- Pay an application fee of A$30 if the documents contain non-personal information. No fee is payable for access to personal information about yourself.
2. Review of Agencies Decisions
- Internal review:
If you disagree with a decision made by an agency, you can ask for that decision to be reviewed by someone else in the agency. You can ask for an internal review when -
- The agency refuses to deal with your application.
- You have been refused access to some or all of the documents requested.
- You have only been given access to parts of a document and you want to see the parts that are deleted.
- The agency has decided to give access but has deferred giving you access.
- The agency has decided that medical or psychiatric information about you will only be given to you through a nominated medical practitioner.
- The agency charges too much for access or if the charges seem unreasonable.
- You are a third party mentioned in the documents but have not been consulted;
or you have been consulted but disagree with a decision to release the documents to the
applicant. (See separate brochure on 'Third parties and Their Rights')
- The agency does not agree to amend your personal information; or make a notation or
attachment to the document in a form that satisfies you.
You must apply within 30 days of receiving the notice of decision from the agency. The principal officer of the agency may allow you to lodge your application after the 30 days has elapsed.
Another officer who is not subordinate to the person who made the original decision, will conduct the review.
Within 15 days the agency will advise you in writing of the outcome of the review, as well as your right to lodge a complaint with the Information Commissioner for an External Review of the agency’s decision.
- External Review:
After internal review, if you still disagree with the agency’s decision, you can lodge a complaint with the Information Commissioner. If you make a complaint to the Information Commissioner, the complaint must -
- Be in writing and include your address.
- Give particulars of the decision to be reviewed including details of the part, or parts, of the decision you want the Commissioner to review.
- Include a copy of the notice of decision sent to you by the agency - this is the written notice of decision provided to you following the agency's internal review;
- if you are the access applicant, you must apply within 60 days from being given the agency's decision; and
- if you are a third party affected by the decision of the agency, you must apply within 30 days.
In exceptional circumstances, the Commissioner may allow a complaint to be lodged after these periods have elapsed.
3. How much does it cost?
No fees or charges apply for personal information or amendment of personal information about yourself (e.g. your medical records; details of employment etc).
Applications for other documents (i.e. which are non-personal in nature) require a $30 application fee to be paid when the application is lodged, and there may be other charges imposed by the agency as follows:
- $30 per hour of staff time or pro rata for part of an hour for dealing with an application.(Agencies cannot charge for locating the documents within the scope of your request.)
- $30 per hour (or pro rata for part of an hour) for supervision by staff when access is given
to view documents; or the time taken by staff to prepare a transcript from a tape or make
- 20 cents per photocopy.
- Actual cost incurred by the agency for preparing a copy of a tape, film or computerised
information, or arranging delivery, packaging and postage of documents.
- There are no application fees or charges for internal or external reviews.
- Estimate of charges
You can ask the agency for an estimate of charges when lodging an application. If the charges are likely to exceed $25 the agency must give you an estimate of charges and ask whether you want to proceed with the application. You must notify the agency (within 30 days) of your intention to proceed. In some instances the agency may request an advance deposit. If you are financially disadvantaged advise the agency as a 25% reduction of charges may apply.
4. Deciding what information is “personal information”
- The term “personal information” is defined in the FOI Act. Basically, personal information is information or opinion about an identifiable person, whether living or dead.
- The kind of information about a person that is “personal information” under the FOI Act includes, for example, a name, address and telephone number, medical information, financial information, marital status and information about personal relationships and other sensitive, private information. Other information such as the location, date or time a complaint was made to a regulatory body may be “personal information” if the information identifies someone and there is only one possible source of information.
- When an applicant seeks access to personal information about himself or herself, the fact that it is personal information about him or her is a factor in favour of disclosure. Frequently, personal information about an applicant appears in context with non-personal information. It is not a requirement that the non-personal information be deleted before access is given. Rather, background information and factual information that puts the personal information into context should be released to an applicant so that the document is meaningful.
- Non-personal may be deleted if, for example, it is irrelevant to a request or if it deals with a totally different subject matter. Non-personal information that is personal information about a third party should always be deleted unless consent is given for its disclosure to the applicant. If a third party knows the identity of an applicant, he or she may consent.
5. Releasing documents that may be technically exempt
- Agencies always have a discretion to release documents that may be technically exempt, where that can properly be done. If no harm is likely to follow from disclosure, then it is consistent with the aims and objects of the FOI Act to give access to documents when a request is received. Some of the factors that might be relevant to the exercise of discretion include the age of the documents, whether the subject matter is current, and the interests of the applicant. For example, an agency may decide to release a copy of the applicant's own letter to the agency even though it contains references to third parties.
6. Stopping and starting the clock
- The permitted period of 45 days commences on the day after the application is lodged with an agency. Generally, an application is lodged on the date that it is received, whether it arrives by post, facsimile, email or by hand. The date shown by a “date received” stamp would indicate that the permitted starts the following day.
- There will be times when it is necessary for an agency to “stop the clock”. For example, when an applicant is given an estimate of charges, the clock stops on the day on which the notice of the estimate is given and it restarts the day after the agency has been notified that the applicant wishes to proceed with the application.
7. Conducting proper searches
If an agency is unable to locate the documents and there is reason to believe that those documents should exist, an adequate statement of reasons may reassure an access applicant that the agency has attempted to meet its statutory obligations but is unable to do so. The minimum requirement is a brief explanation of the steps taken by the agency to satisfy the request. The explanation should include the locations searched, why those locations were chosen and a description of how the search was conducted - for example, computer search, manual search of file series or card index.
- Documents may not readily be found for a number of reasons -
- They might have been be misfiled. There may be imperfect record keeping practices used in the agency.
- The application may be ill-defined and not identify documents clearly enough.
- There may be different record- keeping systems used in an agency.
- The agency’s policies or guidelines on document retention might be unclear.
- There may be inadequate training in record management.
- The documents may simply not exist.
8. Dealing with large applications
- Some applicants make requests for access which are drafted in extremely broad terms and without any real knowledge that documents actually exist. Typically, such requests are in the form “All documents held on me”, or “All files relating to...”. If an agency receives a request of that nature, it should assist an applicant to formulate the request in more precise terms. For example, by explaining, subject to any exemptions, the nature and type of documents held, or by allowing an applicant to have access to a record data base if that would assist to identify the precise document required.
- If an applicant persists in presenting an ill-defined application, despite offers of assistance from an agency, the agency should contact the Advisory Services offered by the Information Commissioner before refusing to deal with the application.
- An agency has a duty to attempt to reduce the amount of work need to deal with a large application. The agency is required to take reasonable steps to help the applicant identify the documents required and change the application so that it complies with s.12 of the FOI Act. Reasonable steps include making arrangements to assist the applicant, and explaining the record-keeping system and the methods of storage and retrieval. However, the agency is not required to show a file or files to an applicant, nor is it required to provide unrestricted access to files to enable the applicant to decide what he or she wants.
- If a complaint is made to the Information Commissioner about an agency’s decision to refuse to deal with an access application, the agency must persuade the Commissioner that the work involved in dealing with the application in the form in which it is made, would substantially and unreasonably divert the resources of the agency away from its other operations. Relevant factors include:
- the number of documents or potential documents involved;
- the location of those documents and the manner of storage or filing;
- the number of people competent to identify the documents and the normal duties of those people;
- the assistance provided by the agency to the applicant to change the application
9. Dealing with problem applicants
- From time to time, agencies will be required to deal with applicants who make unreasonable demands, such as repeated requests for the same or similar documents. Such applications cannot be simply ignored. Agencies are under a duty to assist applicants, but there must also be a corresponding obligation upon applicants and an element of reasonableness must be implied if the legislation is to work satisfactorily.
- There is nothing in the FOI Act to prevent an unsuccessful applicant from making another access application to an agency for the same documents to which access has previously been refused, particularly if the applicant believes that the law or the policy or the agency's position in respect of certain types of document may have changed.
- There may be a point at which repeated requests for the same documents could be viewed as vexatious. However, agencies do not have the power to decide that an application is vexatious, nor can they refuse to deal with it except under section 20 of the FOI Act. Agencies should use the Advisory services offered by the Information Commissioner to identify their options, rather than deciding that an application should be refused.
10. Calculating reasonable charges
- Applicants are entitled to have access to documents at the lowest reasonable cost. No charges should be imposed for searching for documents. A charge must be waived or reduced if the applicant is impecunious. "Impecunious" is not defined in the FOI Act. It means "having little or no money". The meaning of "impecunious" includes being unable reasonably to afford the access charges. The purpose of the legislation is to seek to avoid hardship to a person who does not have enough money to pay the associated charges.
- Charges may be imposed for:
- consulting with third parties, if necessary;
- examining documents, exercising judgement and making a decision on access;
- deleting exempt matter where appropriate;
- preparing a notice of decision; or
- providing access in the manner required.
11. Writing a proper Notice of Decision
- The onus is on the agency to justify any decisions that are adverse to the rights of access given to an applicant. The decision-maker should:
- identify and describe the documents;
- explain why those documents or parts of documents are exempt;
- specify which exemption clause or clauses applies;
- provide reasons to show why the documents in question are claimed to be exempt - do not simply refer to an exemption clause... explicitly document your reasons for using it.
- The notice of decision should be the result of a documented process of consideration and decision-making by an agency. An applicant must be able to understand which documents are within the ambit of the access application (number and type) and, where access is refused, all of the steps of the reasoning process involved in the agency deciding that the documents are exempt.
- Each document must be identified and a decision made in respect of each of those documents. Whilst each page of a multi-page document may be a "document" under the FOI Act, nothing is to be gained by treating each page separately if the document as a whole falls within the ambit of a request. Attachments should be treated as separate documents and a decision made about access to each attachment.
- An agency may provide a schedule of documents. However, a schedule of documents is not required to be prepared and provided to the applicant by the FOI Act, although it may be useful. The use of a schedule concerning disputed documents will enable an agency to organise basic facts concerning the documents that are in issue.
- The schedule should list the documents by number (eg. 1-10; 1-200 as the case may be) commencing in chronological order. If the access application consists of several discrete requests, the documents should be listed in chronological order for each discrete part of the request. In addition, the schedule should contain the following information:
- the date of each document;
- a brief but sufficient description of the document or its contents; and
- the exemption/s claimed for each document, or part of a document.
(N.B. reminder: do not disclose exempt matter in any description eg names of third parties)
Reasons for Decision
- The notice of decision must contain the real reasons for not disclosing documents. Embarrassment is not a reason to deny access! A decision-maker should tell the applicant:
- what documents are in issue, describing them as fully as possible without revealing exempt matter;
- why they are sensitive;
- what exemptions are claimed for which documents or parts of documents;
- why those exemptions apply to specific documents;
- what is likely to happen if they are disclosed and why those consequences can reasonably be expected to result from disclosure;
- why the expected consequences of disclosure are so important as to warrant a refusal of access; and
- what public interests favour non-disclosure and why those were given more weight than the ones favouring disclosure.
12. Making submissions to the Information Commissioner
- When a complaint has been made to the Information Commissioner about an agency’s decision under the FOI Act, the Information Commissioner will usually require written submissions from the agency concerned to support the decision made by it. If a complainant has been refused access to documents because they are exempt, the agency must persuade the Information Commissioner that the documents are exempt for the reasons given.
- Each exemption clause has a number of parts or elements which must be satisfied if the exemption is to apply. It is essential that the reasons given by an agency support each part of the exemption clause. If the reasons are too general or speculative and do not support a claim for exemption, then the documents will not be exempt.
13. Questions for Decision-makers
For each exemption claimed:
- Have you clearly identified the documents or parts of documents in question?
- Have you read and understood previous decisions made by the information Commissioner that deal with the particular exemption and how it should be applied?
If the exemption clause requires that a particular harm or consequence could follow from disclosure:
- Have you described the expected consequences in detail?
- Have you provided material to support your claim that the particular harm or consequence is one that can reasonably be expected?
If the exemption clause requires that a document be prepared for a specific purpose:
- Have you described the factual circumstances surrounding the creation of the document to show that it was prepared for that purpose?
If the exemption requires that a document or information be confidential:
- Have you described the circumstances in which the document or information was obtained or received?
- Do the circumstances establish an express or an implied understanding of confidentiality?
- Is the document or information still confidential, or has confidentiality been eroded over time?
If an exemption requires that a document belong to a class of documents that are exempt:
- Have you described the document or the circumstances surrounding its creation and established that it is a document of the kind described?
14. Deciding if you are a Third Party
You are a third party if-
- Personal information about you is contained in documents of an agency and an application for access to those documents has been made to the agency by someone else.
- Commercial, business or financial information about you, your company or your business is contained in documents of an agency and an application for access to those documents has been made to the agency by someone else.
15. What to do if you are consulted as a third party by an agency
- Before deciding whether to give access to documents which contain personal, commercial, business or financial information about a third party, the agency must consult the third party and take the views of the third party into account.
- An agency does not have to consult a third party if it decides to refuse access, but it may do so.
- If you are a third party and you have been consulted by an agency, you should tell the agency if you consent to the disclosure of the documents to the applicant. Normally, the agency will not disclose the identity of the applicant to you.
- If you do not consent, you must tell the agency why and give your reasons. Discuss your objections with the agency and fully explain your views.
- If you do not respond to the agency when it contacts you, the agency will proceed to make its decision without the benefit of information from you.
16. Your rights as a third Party
- If the agency decides to give access against your wishes, you will be informed of this and of your rights of review.
- The agency must not give access until the time for you to exercise your rights of review has expired.
17. How to “appeal” against an agency’s decision
- In this first instance you apply to the agency for an internal review.
- After internal review, if you are still dissatisfied with the agency’s decision, you can lodge a complaint with the Information Commissioner and ask for an external review.
See separate brochure on 'Third parties and Their Rights'.
18. Information Statement Requirements
At intervals of not more than 12 months, each agency is required to ensure that an up-to-date information statement about the agency is published (sections 96 and 97 of the FOI Act).
- Agencies have the option of publishing the requirements prescribed to be included in the Information Statement either as a stand-alone document or incorporated in its Annual Report.
- Where an Information Statement is produced as a stand-alone document, reference to its existence and details of how it can be inspected or purchased should also be contained in the agency's Annual Report.
- Each agency must make a copy of its Information Statement available for inspection and/or purchase at its major offices including those at regional centres.
If the Information Statement previously submitted has not changed, it is sufficient to comply with the requirements of the FOI Act, to notify the Information Commissioner that the Information Statement has been reviewed and it is still current. Where minor amendments are made to an agency’s existing information statement, copies of the amended pages can be forwarded in lieu of the entire document, if feasible.
In the Information Commissioner’s 2002 Annual Report, the Commissioner noted and supported the publication of Information Statements and internal manuals online. Many agency web sites now utilise this method of publication which is another way of ensuring that the public has access to the information it needs to effectively use FOI.