Australian Law/Freedom of Information/Commonwealth

Access to documents held by Commonwealth agencies and Ministers is provided under the of Information Act 1982 (Cth).

This page first gives an overview of the features of the Commonwealth FOI scheme, and then discusses important concepts in the regime.

Access to documents under the Commonwealth FOI scheme:

• does not require the payment of an application fee
• requires the payment of fees (FOI charges) based on the agency's costs in finding and retrieving the documents, redacting them and
  • (but you can withdraw your request if you get the bill and decide you no longer want the documents)
• can be done via email
• can be done via the Right to Know website
• can be done using a pseudonym or anonymously: [1]

Decisions by agencies and Ministers are subject to review:

• internal review
• merits review by the Information Commissioner
• merits review by the Administrative Appeals Tribunal
• appeal on a question of law to the federal courts

What is a 'document'

See definition of document, which differs from (but is similar to) the definition in the Acts Interpretation Act.

'Public interest' tests

A number of provisions use the term 'public interest'.

Access to machine-readable documents

Machine-readable data such as tables

Ideally (from an FOI applicant's point of view at least) one might like to be able to specify rows and columns from a database held by an agency and receive a document consisting of the result in a table (especially something machine-readable like a CSV or Excel file). However, this is not exactly how the FOI Act works. The FOI Act proceeds on the basis of a 'document' that exists and is released.

Agencies have provided CSV files extracted from databases in the past, e.g. list of websites visited by agency staff on a specific date: [2].

It is not clear how to legally compel this. So far it only occurs where the agency does it voluntarily. There may be a way to obtain the result via the 'use of a computer' provisions in section 17, with an appropriately-worded request.

The AAT's decision in Diamond and the CEO, Australian Curriculum Assessment and Reporting Authority [2014] AATA 707 [3] discusses whether and how rows, columns or cells in a table in a database may be a 'document'. In that case the database as a whole as a 'document', which meant that an assessment of whether an exemption applied had to be done at the database level, i.e. 'Would the disclosure of the whole database trigger an exemption?'

Analysis in decisions such as that in Diamond give some clues as to how to efficiently get machine-readable data such as tables via the FOI Act, but more experimentation may be required.

Original documents such as Word .doc files

It is unclear whether an applicant can insist on a document being provided in its original electronic form. It is common agency practice to convert documents to PDF before release.

If it is possible to insist on a document's original electronic form, it will probably require a very precise request and a run through the Information Commissioner/AAT to solidify the principle.

'Vexatious applicants'

Under the FOI Act, s 89K, the Information Commissioner may declare a person to be a vexatious applicant.

The grounds for doing so are stated in section 89L:

(a) repeated 'access actions' which constitute an abuse of process;

(b) a particular 'access action' which constitutes an abuse of process;

(c) a particular 'access action' which would be manifestly unreasonable.

'Access actions' include FOI requests, requests for internal or IC review and requests to amend personal records: s 82L(2).

The consequence of a declaration is generally that any access actions (such as FOI requests) made by the person can be ignored, essentially banning them from the FOI system for the specified period. The Information Commissioner may attach any terms or conditions he or she sees fit to the declaration, such as requiring the person to get the Information Commissioner's permission before making an access action.