Environment Law in the Northern Territory

Information held by the Commonwealth Government

Overview

To obtain information and documents held by the Commonwealth Government, there are two options you can:

  • write to the organisation, which you think holds the information and ask it to provide it to you voluntarily; or
  • make a request for information under the Commonwealth Freedom of Information Act 1982

The purpose of the Commonwealth Freedom of Information Act 1982 is to give the Australian community access to information held by the Commonwealth Government. The Freedom of Information Act 1982 provides a right for access to documents and requires Commonwealth Government agencies to publish certain information.

In some situations it can be cheaper and quicker to try to obtain documents without using the formal legal procedure. For example, by requesting the documents or information without making a request under the Freedom of Information Act 1982 or by finding whether the information is publicly available online or in a Department publication. However, if you wish to make sure that your legal rights are protected and that information is properly searched for and provided to you within the legal timescale, it may be appropriate to request information under the Freedom of Information Act 1982.

What information is available under the Commonwealth Freedom of Information Act 1982?

Documents held by Commonwealth Government departments and some Commonwealth Government contractors may be accessible to the public by making a request for information under the Commonwealth Freedom of Information Act 1982. Documents that can be provided include both written materials such as reports, plans, photographs and electronic records, such as emails and even text messages.

Which Commonwealth organisations does the Freedom of Information Act 1982 apply to?

The Freedom of Information Act 1982 applies to Commonwealth Government agencies, Ministers and some contractors. This means:

Not all Commonwealth organisations are subject to the Freedom of Information Act 1982. Organisations which are exempt from the Freedom of Information Act 1982 include:

  • Aboriginal Land Councils
  • Aboriginal Land Trusts
  • Auditor-General
  • Australian Government Solicitor
  • Australian Industry Development Corporation

Making a formal request for information

A request for information must:

  • be made in writing
  • state that the request is a request under the Freedom of Information Act 1982
  • provide sufficient information for the Government agency to identify the documents requested. For example, including information about the date or date range of the documents, the names of the author or authors, the subject or theme of the information in the document, and the types of documents requested
  • provide a contact address for the applicant (this can be email or an postal address)
  • be sent by pre-paid post to the agency, or a member of staff of a Minister, or to an email address specially provided by the Government agency or a Minister

There is no application fee for requests for documents made under the Freedom of Information Act 1982. The first five hours of work by the Government agency searching and reviewing documents are also free. After five hours processing charges (such as for searching for, reviewing and providing copies of documents) may apply. Check the processing costs with the Government agency before making your request.

What happens after a request is made?

Once a Government agency or a Minister receives a request under the Freedom of Information Act 1982, it has 14 days to acknowledge receipt of the request.

The Government agency or Minister has 30 days from the date the request was received to then make a decision on whether or not to provide access to the documents that have been requested.

In certain situations, the Government agency or Minister may extend the 30 day time period for making a decision. This can happen when:

  • the Government agency needs to consult with third parties about whether to disclose the documents. Third parties include States and Territories, businesses and individuals. The Government agency may extend the time period for making a decision by 30 days if it is consulting with a third party.
  • an applicant agrees to a time extension. This can happen when the Government agency contacts you to ask your permission to extend the time period. For example, some people do not need documents immediately and may be happy to extend the deadline for a decision if the Government agency is busy. A time extension can be for up to 30 days. An applicant has to give their permission in writing to the time extension. The Government agency must also write to the Office of the Australian Information Commissioner to inform him or her of the agreement to extend the time for a decision.
  • the request for documents is complex or voluminous. This happens when a request will take a longer time to process because it requires a greater time to search for and make a decision on documents. If this happens, the Government agency must write to the Office of the Australian Information Commissioner and obtain permission for a time extension. The time extension can be for 30 days or longer. Time extensions for complex or voluminous documents can only be sought before the 30 day time limit (or an extended time limit) expires.

The 30 day time period for making a decision can also be stopped if:

  • the Government agency writes to you within the 30 day or extended time period, to tell you about the charges for processing your request, and asks for a deposit to be paid. Time starts to run again when the applicant confirms that he or she will pay a deposit towards the processing charges.
  • the Government agency writes to you stating that processing the request for documents would result in a substantial and unreasonable diversion of its resources. This might occur in cases where an applicant has requested such a large number of documents that the Government agency cannot process the request. If this happens, the Government agency must write to the applicant to state that it cannot process the request and must offer to help the applicant to change the request so that it can be processed. This might mean re-writing the request to reduce the number of documents to be searched for. Time stops running when the Government agency writes to an applicant. The applicant then has 14 days to respond. The applicant can change their request to allow it to be processed, or can withdraw their request or can refuse to change it. If the applicant does none of these things, the request is taken to be withdrawn. Time starts to run again once the applicant has responded to the Government agency.

Deemed decisions

The Government agency must make a decision on whether or not to provide documents within 30 days, unless the time is extended or stopped (see above). If the decision is not made within 30 days or within the extended time period, the Government agency is deemed to have refused access to documents.

If this happens, the Government agency may still be allowed one further time extension to comply with the request for access, but this can only happen with the permission of the Australian Information Commissioner. If the Australian Information Commissioner does grant a time extension after a deemed refusal, and a decision is made within this extra time extension, this decision replaces the previous deemed decision and becomes the legal decision.

If no decision is made within any time extension granted by the Australian Information Commissioner, the decision remains a deemed refusal.

If there is a deemed refusal of a request for access to documents, all charges for processing a request (such as search fees or copying charges) are waived.

Decisions on requests for documents

When the Government agency makes its decision on whether or not to provide documents, it can refuse to provide documents if :

  • the work involved searching or processing a request would substantially and unreasonably divert its resources. If two or more requests are made on the same subject, the Government agency may treat them as one request for the purposes of deciding whether processing the requests would substantially and unreasonably divert its resources.
  • a request does not identify documents sufficiently for a request to be processed
  • to provide all or part of a document requested if it falls within a category of documents that are exempt from disclosure under the Freedom of Information Act 1982.

Under the Freedom of Information Act 1982, certain documents do not have to be provided to the public. These are documents that fall within one of the exemptions from disclosure under the Act. There are two types of exemptions. These are absolute exemptions and conditional exemptions.

Absolute exemptions are those where the Freedom of Information Act 1982 provides that documents in a certain category are always exempt because it would be against the public interest to disclose them. The decision-maker does not have to consider whether or not it would be in the public interest to disclose documents if they fall within an absolute exemption category. The main absolute exemptions are for:

  • documents affecting national security, defence or international relations
  • Cabinet documents which were created for the dominant purpose of submission to the Cabinet for consideration (including drafts, but excluding documents that are officially published)
  • Documents affecting enforcement of law and protection of public safety
  • Documents to which secrecy provisions of enactments apply
  • Documents subject to legal professional privilege unless the person entitled to claim legal professional privilege waives that claim
  • Documents containing material obtained in confidence
  • Documents disclosure of which would be contempt of the Commonwealth Parliament or contempt of court
  • Documents disclosing trade secrets or commercially valuable information
  • Electoral rolls and related information

There are also eight categories of conditional exemptions. If a document is a conditionally exempt document then access to the document is required to be given unless it would be contrary to the public interest. A decision-maker must consider the factors favouring and restricting access when a document falls within the scope of a conditional exemption. In practice, this means that the decision-maker must weigh the factors and determine whether or not the balance of factors makes disclosure contrary to the public interest. In the event that parts of a document contain material which would be exempt from disclosure, an edited copy of the document with the exempt section deleted, must be disclosed if practicable.

Conditional exemptions are for documents which relate to:

  • Commonwealth, State and Territory relations – where disclosure of the document could damage a relationship between any of them or could divulge confidential information
  • deliberative processes – where documents relate to opinion, advice or recommendations obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of a Commonwealth Government Department or Minister
  • financial or property interests of the Commonwealth – if disclosure would have a substantial adverse effect on the financial or property interests of the Commonwealth
  • certain operations of agencies – where disclosure could reasonably be expected to prejudice the effectiveness or attainment of work of a Government Department or have a substantial adverse effect on management of personnel or the conduct of operations
  • personal privacy – where documents would involve unreasonable disclosure of personal information
  • business – where disclosure of documents could adversely affect business, commercial or financial affairs of a person or could reasonably be expected to prejudice the future supply of information to the Commonwealth
  • research – where disclosure of research being undertaken by the Commonwealth could expose a Commonwealth Department or an officer to disadvantage
  • the economy – where disclosure could reasonably be expected to have a substantial adverse effect on Australia’s economy

Factors favouring access

Some of the factors favouring access are when disclosure:

  • informs debate on a matter of public importance
  • reveals environmental or health risks or measure relating to public health and safety
  • contributes to the protection of the environment and administration of justice generally, including procedural fairness
  • enhances accountability and the scrutiny of Commonwealth Government decision-making
  • reveals the reason for a Commonwealth Government decision and any background or contextual information that informed the decision
  • allows or assists inquiry into possible deficiencies in the conduct or administration of an agency or official
  • advances the fair treatment of individuals and other entities in accordance with the law
  • contributes to the enforcement of the criminal law
  • promotes oversight of public expenditure

Factors for restricting access

Some of the factors for restricting access are when disclosure:

  • prejudices an individual’s right to privacy
  • prejudices security, law enforcement, public health or public safety
  • impedes the protection of the environment
  • prejudices the flow of information to the police or another law enforcement or regulatory agency
  • prejudices the conduct of investigations, audits or reviews by the Ombudsman or Auditor-General
  • prejudices an agency’s ability to obtain similar information or confidential information in the future

What to do if you are unhappy with a decision

If you are unhappy with a decision made by a Government agency to refuse or restrict access to documents, there are two options: request an internal review or appeal to the Australian Information Commissioner. Both options are free.

An applicant who is unhappy with a decision can seek an internal review of the decision within 30 days of the date of being notified of the decision. An internal review is a type of review conduct by the same Government organisation who processed the request, but by a different officer of the organisation. The internal review looks at the documents and decides whether the initial decision was right. The internal review may uphold the initial decision or it may decide that further documents should be provided.

As internal review is optional, an applicant who is unhappy with a decision may wish to appeal directly to the Australian Information Commissioner for a review of the decision.

Australian Information Commissioner

The Australian Information Commissioner offers an external review of the merits of a decision.

An appeal to the Australian Information Commissioner about a decision must be made within 60 days of being notified of the decision. You can request a review in writing or by using an online merits review form prepared by the Office of the Australian Information Commissioner. For more information about reviews to the Australian Information Commissioner see Fact Sheet 12 prepared by the Information Commissioner.

The Australian Information Commissioner has the power to make a binding decision on whether to grant or refuse access to documents. The Australian Information Commissioner may confirm, vary, or overturn and substitute a fresh decision for the initial decision of the Government agency. The Australian Information Commissioner must issue a written decision with reasons for his or her decision and a copy of the decision will be published on the Australian Information Commissioner’s website.

The Australian Information Commissioner adopts an informal, non-adversarial approach to resolving disputes between people seeking information and Government agencies. Most disputes are resolved by mediation. In unusual circumstances, some disputes may proceed to a formal hearing before the Australian Information Commissioner. Any party can apply for a hearing at any time after applying to the Australian Information Commissioner for a review of a decision. Hearings are conducted in public unless there are reasons for holding a hearing in private. Parties can be represented by a lawyer. The hearing is not bound by the rules of evidence. The Australian Information Commissioner may refuse a review if the application if he or she believes that in the interests of the administration of justice the Commonwealth Administrative Appeal Tribunal should hear the matter or if the application is frivolous, vexatious, misconceived or not in good faith.

The Australian Information Commissioner has powers to:

  • require any person to produce information and documents by written notice
  • attend hearings to answer questions (on 14 days notice)
  • give answers under oath or affirmation

The Australian Information Commissioner also has powers to make a declaration that an applicant is vexatious. If an applicant is declared to be vexatious, he or she may be disqualified from exercising certain rights under theFreedom of Information Act 1982. The decision as to whether an applicant is vexatious may include considerations such as whether the person has repeatedly engaged in access actions, whether a particular access action would be manifestly unreasonable and whether it would be an abuse of process. An abuse of process might be unreasonably interfering with the operations of an agency or seeking to use the Freedom of Information Act 1982for the purpose of circumventing restrictions on access to documents imposed by a court.

Appeals to the Administrative Appeals Tribunal and Federal Court

If an applicant is unhappy with the decision of the Australian Information Commissioner, he or she may apply for a review of the decision to the Commonwealth Administrative Appeals Tribunal for a merits review of the decision. An applicant may also apply to the Administrative Appeals Tribunal for a review of any decision by the Australian Information Commissioner that the applicant was a vexatious applicant or where the Australian Information Commissioner refused to hear the review. An appeal to the Administrative Appeals Tribunal must be made within 28 days of the decision.

If the applicant believes that there has been an error of law, then an applicant may apply directly to the Federal Court of Australia from the Australian Information Commissioner on a point of law. An applicant may also appeal any decision of the Administrative Appeals Tribunal to the Federal Court of Australia on a point of law.