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Freedom
of Information
In the pursuit of greater government transparency and therefore accountability, the Commonwealth and State governments have instituted systems whereby the public may, as far as possible, obtain access to information held by these governments and ensure that government records concerning the affairs of members of the public are not inaccurate or wrong.
How
is access to Government information and records achieved?
Ensuring
that information concerning the operation of government is made available to
the public.
Legal rights are conferred on each member of the public to be given access to documents held by government, subject only to restrictions necessary for the proper administration of government.
How
do you know what documents to look for and how to access them?
Government
agencies must publish and make available to the public up-to-date information
identifying:
the
agency's structure and function;
how
the functions of the agency affect the public;
how,
if possible, the public can participate in formulating the agency's policy
and the exercise of the agency's function;
what
documents are available for public inspection either for free or at charge;
the
arrangements necessary to obtain access to documents and seek amendments of
records;
agency
policy documents; and
to
whom inquiries should be directed and when documents may be inspected or
purchased.
When can a government
agency refuse access?
A
government agency may refuse access where:
the
document is exempt (ie recent cabinet documents, documents containing
confidential information, documents affecting the economy of the
Commonwealth or State, etc);
the
work associated with dealing with an application to access information would
unreasonably divert an agency's resources from its primary functions; or
there
exists other more accessible means by which to access a document;
What happens if your
request for information or to alter records is denied?
When an applicant is unsuccessful in his or her quest to obtain information or alter records, the applicant is given written notice of the decision by the relevant government agency. The unsuccessful applicant may thereafter seek to have the decision reviewed by the agency to whom the application was made. Furthermore, there exist external bodies of review, namely, the Ombudsmen, a Tribunal and the Federal or Supreme Court.
Legal
Information
Accessing
information held by State and Commonwealth governments
Applications
for access to information under the control of the Commonwealth Government and
State Government are made pursuant to separate acts.
An
applicant seeking information from the Commonwealth Government must utilise
the Freedom of Information Act 1982 (Cth).
An applicant seeking information from the State Government must utilise the Freedom of Information Act 1989 (NSW).
How
to find where information is located and to whom inquiries are to be directed
Given
the vast number of government agencies and varied information held by them,
knowing where to go in order to obtain information can seem daunting.
However, to assist the public to exercise their rights of access
effectively under the Freedom of Information Act at both the Commonwealth and
State level, government agencies are required to publish statements setting out:
The
particulars of organisation and functions of the agency
The
categories of documents that are maintained in the possession of the agency
Details
of the facilities provided by the agency for enabling the public to access
documents.
Any
information that needs to be made available to the public concerning
procedures for accessing information and details relating to the people and
places at which initial inquiries concerning access may be directed.
These
statements must be made available to the public for inspection and purchase by
members of the public. Therefore,
as a preliminary procedure, a person should consult these statements in order to
locate what documents an agency has in their possession, where to direct
inquiries, what charges if any are imposed to obtain the information and to whom
an application for information should be directed.
A person should contact the agency in question on how they might obtain the statements produced by that agency. It should also be noted that an up-to-date summary of the affairs of the agency is to be published regularly in the government Gazette with regard to New South Wales agencies. In the case of the Commonwealth, the statements are to be published in an annual report of the agency, or if none exists, in an annual report of the Department to which the agency belongs.
Requests for Access
A
person who wishes to obtain access to a document of an agency or an official
document of a Minister may request access to the document.
The request must:
Be
in writing
Specify
the Act under which the application is made [ie Freedom of Information Act
1982 (Cth) or Freedom of Information Act 1989 (NSW)]
Provide
such information concerning the document(s) requested as is reasonably
necessary to enable a person dealing with the request to identify it.
Specify
an address in Australia at which notices of determination may be sent to the
applicant
Be
accompanied by any fee payable for access to the information, if that fee
has already been ascertained by you.
Whilst it is important to direct the application to the correct agency, if that agency does not have the information requested, it is under an obligation to take reasonable steps to redirect the application to the appropriate agency.
Amendments
of records
If
a document of an agency to which access has been lawfully provided to a person
contains information about the person which is incomplete, incorrect or
misleading and is being used by the agency, that person may seek to amend that
information.
An
application for amendment must:
Be
in writing
Specify
the document containing the personal information requiring amendment as best
as possible
State
how and why the information is incomplete, incorrect, out of date or
misleading.
State
the amendment requested
Be
delivered by hand or post to the agency.
As
with an application for information, an agency must give written notice of its
determination and include the same particulars in relation to its decision.
Making
of a decision
Upon
receiving an application, an agency shall determine whether access to a document
is to be given or refused or whether records are to be amended.
An application must be determined as soon as practicable and in any case:
within
30 days after the application was received in the case of the Freedom of
Information 1982 Act (Cth).
within
21 days after the application was received in the case of the Freedom of
Information 1989 Act (NSW).
If an agency fails to determine the application within this period it is taken to have determined the application by refusing access or by refusing to amend its records.
Notice
of a decision
Once
a decision is made by the particular agency notice must be given to the
applicant of the decision. Such a
notice must:
state
the findings made by the agency of any material questions of fact and the
reasons for the decision;
the
amount of any or further charge required in relation to the application; and
appropriate information in relation to a person's rights with respect to review of the decision, making a complaint to the Ombudsmen and the procedures necessary to exercise those rights.
Challenging
a decision by an agency
As
noted above, the procedures for challenging a decision by an agency are required
to be included in the written notice of the determination made by the agency.
Where
a determination was not made by the
principal officer of an agency, a person dissatisfied with their application can
first seek internal review of the decision. That is appeal to the agency itself to alter its decision.
Such
an appeal must:
be
made in writing
be
addressed to the principal officer
specify
the address in Australia to which notices are to be sent
be
lodged at the office of the agency within the time specified after being
given notice of the decision of the agency. The specified time for lodging an appeal is either 28 days
with regard to the NSW Act or 30 days with regard to the Commonwealth Act.
Should
internal review not prove successful, an alternate course of action is to make a
complaint to the Ombudsmen. The
Ombudsmen may thereafter investigate the matter and recommend that the
determination of the agency be reviewed.
A
person who continues to be dissatisfied after internal review and a complaint
made to the Ombudsmen, still has avenues of redress. These include Administrative Tribunals and the Supreme or
Federal Court. Legal advice should,
however, be sought if these avenues are pursued.
FURTHER INFORMATION
This Information Outline is provided courtesy of Craddock Murray Neumann who are experienced in this area of law. They are located at Level 1, 255 Castlereagh Street Sydney NSW 2000 or call them on (02) 9283 4755 if you would like more information on the legal topic, or you wish to obtain formal advice regarding your situation.
Craddock Murray Neumann believe in the ethical practice of law. This means that we strive to protect and advance the legal rights of our clients, whether they are government departments, large corporations or private individuals. This also means that we will not run cases merely for the sake of running up legal costs at your expertise. We try to find practical, cost effective solutions to your problems. If you need to fight we will be there with you. We have set our fair share of precedents but our clients don't always want to make legal history. We will try to achieve what you want.
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