Federal Freedom of Information scheme: What is it, and is it effective?

How does Freedom of Information work at the Federal Level? 

The Federal Freedom of Information Act 1982 (‘FOI Act’) gives individuals the right to access information held by federal government agencies. 

This includes:

  • personal information they hold about you
  • information about government policies or decisions. 

Any individual or organisation can make a request under the FOI Act. You must make requests in writing to the agency or minister who holds the requested document. There are no charges to make a request. However, agencies and ministers may charge you for the costs of processing your request. 

What can you access under Federal Freedom of Information? 

Under FOI, you can request access to documents held by Australian Government agencies or minister, including: 

  1. Documents that contain your personal information; 
  2. Policy making documents; and 
  3. Administrative decision-making documents. 

There are some documents that are exempt from access under the FOI Act. Exemptions may apply to: 

  1. Documents affecting national security, defence or international relations (s 33); 
  2. Cabinet documents (s 34); 
  3. Documents affecting enforcement of law and protection of public safety (s 37); 
  4. Any documents to which secrecy provisions of enactments apply (s 38); 
  5. Documents subject to legal professional privilege (s 42); 
  6. Documents containing material obtained in confidence (s 45); 
  7. Parliamentary Budget Office documents; 
  8. Documents where the disclosure would constitute contempt of Parliament or contempt of court (s 46); and 
  9. Documents disclosing trade secrets or commercially valuable information (s 47) 

Some documents are conditionally exempt, meaning an agency or minister can decide disclosing the document would be against the public interest. The minister or agency cannot refuse access solely because the document meets a conditional exemption. It must also be against the public interest.

How free is information under the FOI Act?

The former Morrison government experienced heavy criticism for maladministration of the Freedom of Information scheme. In 2019, the Guardian reported that Freedom of Information requests were being refused at their highest rates (17%) since records began in 2010-11. This rose again in 2020-21, with 18% of FOI requests rejected completely.

The teams responding to FOI requests shrunk in at least 20 government departments, increasing the wait time for people making a request. This coincides with an increase in the number of ‘practical refusals’ issued. These allow agencies to block requests if they take up too much of the agency’s resources, or if the applicant does not properly identify the documents.

In 2020-21, the proportion of FOI requests granted in full fell again to 41%. This was down from 47% the previous year, 52% in 2018-19 and 50% in 2017-18. 

Not for profit agencies have also criticised the high costs of making requests. For example, the Guardian reports that the Australian Conservation Foundation had to pay almost $500 for a request where 241 of the 243 relevant pages were exempt from disclosure. The remaining two pages were partially redacted.

Processing timeframes

In 2020-21, data shows that just under one-quarter of FOI requests didn’t meet the statutory processing timeframe of up to 30 days. 12% of all requests were processed more than 90 days over the statutory time period, up from 10% in 2019-20. The Prime Minister’s office performed particularly poorly in this area, with less than 50% of requests processed within the statutory time period. 

Failure of several departments to comply with the FOI Act led to accusations of deliberate breaches. An OAIC insider disclosed that officials use delays deliberately to take the ‘sting’ out of sensitive documents. In 2021, two government departments broke FOI laws within a month.

Firstly, the Prime Minister’s department breached FOI laws in relation to documents requested regarding internal documents about the alleged rape of Brittany Higgins. The department got several extensions of time and still failed to meet the legally imposed deadline to provide the documents. Ultimately, the department refused 18 of the 20 requested documents.

One month later, the Department of Foreign Affairs and Trade was found to have prolonged and eventually refused an FOI application by a lawyer regarding one document concerning Australia’ engagement with multilateral bodies.  

Also, the Australian Conservation Foundation found that environment-related FOIs in particularly are increasingly experiencing rejection. The audit conducted over five years found the number of refusals for environment-related documents more than doubled, growing from 12% to 25%, with the number of requests granted in full dropping from 26% to 16%. The audit concluded that ‘environmental information is even more odiously inaccessible than other information subject to the [Freedom of Information] Act’.

What options are there to take action? 

Office of the Australian Information Commissioner (OAIC) regulates Federal Freedom of Information
Office of the Australian Information Commissioner (OAIC) regulates Federal Freedom of Information

The Office of the Australian Information Commissioner (OAIC) is the independent regulator for privacy and freedom in Australia. Their role is to uphold individuals’ rights to access information held by the government and administer reviews of FOI decisions. 

Under the FOI Act, an applicant who is dissatisfied with a FOI decision can request the Information Commissioner to review the decision. Applicants can also make a complaint to the OAIC about an agency’s actions under the FOI Act.

In 2020-21, applications for review by the OAIC rose 15%. The most commonly reviewed agencies were the Office of the Prime Minister (20% of all review requests), Department of the Prime Minister and Cabinet (15%) and the Department of Foreign Affairs and Trade (14%). 

However, the Guardian reported that the OAIC suffered chronic understaffing for several years. For example, funding reduced under the Abbott government, leaving the office with only two-thirds of the required 100 staff minimum required to deliver its services. Despite the number of complaints about FOI decisions increasing by 72% between 2016-17 and 2017-18, the Morrison government has failed to increase funding or support for the OAIC. This underfunding of the OAIC has led to a loss of transparency on important topical issues.

Once, an Italian investigative journalist reporter waited more than two years for the OAIC to make a decision on the government’s reaction of documents related to Julian Assange and his extradition. 

What’s Next?

Freedom of Information requests allowed the discovery and reporting of important matters including the RoboDebt scheme and ‘sports rort’. However, the FOI exemptions and funding cuts make getting important information far more onerous. 

nsw freedom of infomation nsw logo

In NSW the equivalent GIPA scheme allows a perspective into the conduct of strip searches in NSW.

The Australian Government transparency portal provides comprehensive reporting on the fulfilment of FOI requests. With the release of an OAIC report expected later this year, it remains to be seen whether a change in government will have a positive impact on freedom of information in Australia.

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O’Brien Criminal & Civil Solicitors
p: 02 9261 4281
a: Level 4, 219-223 Castlereagh St,
Sydney NSW 2000

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