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Freedom of Information

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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