Fact sheet for freedom of information practitioners to give to staff

Overview of the Freedom of Information Act 1982

This fact sheet provides agency staff with a broad overview of the Freedom of Information Act 1982 (FOI Act) and the steps required to be taken when an FOI request is received.

The FOI Act is regulated by the Office of the Australian Information Commissioner (OAIC), an independent statutory agency within the Attorney-General’s portfolio.

The FOI Act gives the Australian community a right of access to information held by most Australian government agencies.

What happens after an agency receives an FOI request?

The FOI Act requires agencies to acknowledge receipt of an FOI request within 14 days. Agencies must process all FOI requests as soon as possible, and no later than 30 calendar days after the day on which the request was received.

In some limited circumstances the statutory timeframe may be extended; for example, with the agreement of the applicant or if agencies need to consult a third party.

An extension of time for a large or complex request may also be granted by the Information Commissioner.

Failure to comply with the time limit means the agency is deemed to have refused the FOI request (this is called a ‘deemed refusal’). A deemed refusal is reviewable by the Information Commissioner.

For more information about the processing periods see ‘How long does an agency have to process a freedom of information request?’ and FOI Essentials: Timeframes and Extensions on the OAIC website.

What happens if you are asked to find documents requested under the FOI Act?

You may be asked to find documents requested under the FOI Act. Because statutory timeframes apply, it is important that you look for documents promptly, within the period of time given by your agency’s FOI team.

You must take ‘all reasonable steps’ to find documents requested by members of the public under the FOI Act. You should undertake a reasonable search based on a flexible and common-sense interpretation of the terms of the request.

You must search in all places in which the documents may be stored. This includes databases, records management systems, email accounts, as well as filing systems.

If you do not provide documents within the timeframe requested, a decision will have to be made on the basis of the information available to the decision maker. Therefore it is important that you undertake all relevant searches, because your agency is relying on you to find all documents requested.

The OAIC has published a resource to guide you when looking for documents within the scope of an FOI request - Processing FOI requests: taking all reasonable steps to find documents.

This resource contains an editable search minute that enables you to record the steps you have taken to look for documents.

Request for your views on whether documents should be released

An FOI practitioner in your agency may ask you to say whether you think a document from your business area should be released.

Agencies must give access to a document requested under the FOI Act unless, at that time of making its decision, the document is an ‘exempt document’. A decision maker needs evidence, which can include advice from agency staff such as you, to be satisfied that an exemption is applicable.

If you are asked to provide an opinion, it is important your view is based on a consideration of the sensitivity of the documents and reasons that are permitted to be taken into account under the FOI Act.

Providing views on the sensitivity of a document

A security classification on a document does not mean that a document is exempt from disclosure under the FOI Act. A document is only exempt if one of the exemptions in the FOI Act applies. It is possible that only one sentence is exempt and the rest of the document can be released, even if the whole document is classified. In some cases, documents may be classified but the sensitivity that originally justified the classification has passed, in which case the document may no longer be exempt from disclosure under the FOI Act.

Documents that are unlikely to be exempt

Some documents held by an agency are unlikely to be exempt from disclosure. Examples include documents that agencies are required to publish as part of their Information Publication Scheme, such as the agency’s organisational chart; statutory appointments; annual reports; information routinely released in response to FOI requests; or an agency’s operational information (this is information that assists an agency perform or exercise functions or powers in making decisions or recommendations affecting members of the public).

[FOI practitioner: Please insert a list of document types that your agency normally releases under administrative access arrangements or under FOI].

Reasons that cannot be taken into account in deciding whether documents are exempt

The FOI Act lists factors that cannot be taken into account when deciding whether documents are exempt from disclosure. These irrelevant factors are when:

• access to the document could result in embarrassment to the Government or cause a loss of confidence in the Government
• access to the document could result in a person misinterpreting or misunderstanding the document
• the author of the document was (or is) of high seniority in the agency
• access to the document could result in confusion or unnecessary debate.

Reasons why documents may be exempt

The FOI Act establishes two types of exempt documents:

1. Documents that are exempt.
   • For example, documents affecting national security, Cabinet documents, or documents affecting law enforcement and public safety and documents subject to legal professional privilege or which were obtained in confidence.
2. Documents that are conditionally exempt. An agency must give access to a conditionally exempt document unless at the time disclosure would, on balance, be contrary to the public interest.
   • Conditionally exempt documents include documents affecting personal privacy, deliberative processes or certain business information.
   • A decision maker cannot refuse access to a document simply because it is conditionally exempt. The decision maker must apply the public interest test, which is weighted towards disclosure. Disclosure of conditionally exempt documents is required unless in the circumstances it would be contrary to the public interest to give access.

For more information about exemptions, see the FOI Guidelines, especially Part 5 (Exemptions) and Part 6 (Conditional exemptions) and FOI Essentials: Deciding a freedom of information request.

The OAIC has developed a statement of reasons checklist for decision makers, as well as a sample FOI notice that outlines the kind of information that must be given to applicants when refusing access.

See also the OAIC’s short video on 12 tips for FOI decision makers.

Contact us

• If you have specific questions about the FOI process or an FOI request within [name of agency], please contact [name and contact details of most senior person in FOI section].
• If you have general questions about FOI you can email the OAIC at enquiries@oaic.gov.au or phone 1300 363 992, and visit their website for more information: oaic.gov.au