The Law Handbook 2024

1128 Section 12: Government and the individual might be obtained and looking at the agency website, in particular their section under the Information Publication Scheme, are good starting points. What rights of access do I have? The right of access to documents in the possession of the Australian Government is provided in two ways: 1 Commonwealth agencies are required to publish information about their operations and their powers that affect the public, and their manuals and other decision-making documents under the Information Publication Scheme (ss 8, 8A); and 2 Commonwealth agencies must provide access to requested documents in their possession unless the documents are within an exception or exemption specified in the legislation (pts III, IV; schs 1, 2). An agency or minister has the discretion to give access to an exempt document where that access can be given lawfully. Section 3A of the FoI Act (Cth) encourages this approach. The key terms, ‘agency’, ‘document’, ‘document of an agency’, ‘exempt document’ and ‘official document of a minister’ are defined in section 4(1) of the FoI Act (Cth). ‘Document’ is widely defined and includes any record of information but does not include ‘material maintained for reference purposes that is otherwise publicly available or cabinet notebooks’. To be accessible, the document must be in the possession of the agency or minister when the FoI application is received. Subject to limited exceptions, where the applicant has requested access in a particular form, they must be given access in that form (s 20(2)). Access to computer-stored material may, subject to the normal exemptions and exclusions, be given by providing the information on a computer disk. Alternatively, if the applicant would prefer to access the requested information in written document format, access may be given by providing a computer printout or transcript where feasible (s 17). How do I apply for access? Under section 15 of the FoI Act (Cth), a valid FoI request must: • be in writing; • specify that it is made under the FoI Act (Cth); • provide sufficient information to identify the documents sought; • provide details of how the applicant may be contacted; and • be delivered to an agency at a specified address (including by email to the nominated address). Many agencies have a dedicated FoI page on their website and accept applications for access by post, email or in person. It is unnecessary for the applicant to provide any reasons for seeking access to documents (s 11(2)). There is also no fee for making a request but processing charges may apply. See ‘Fees and charges’, below. Section 15(3) of the FoI Act (Cth) imposes a duty on agencies to take reasonable steps to assist applicants to make their requests comply with the requirements of the Act. If an applicant needs help framing their request, they should contact the FoI officer of the relevant agency. Section 15(4) also imposes a duty on agencies to assist applicants to direct their FoI application to the correct agency. It is also possible that the request may be transferred to the most relevant agency once it has been made (s 16). An agency or minister is required to notify an applicant of their decision no later than 30 days after receiving the FoI request (s 15(5)(b)); however, the time period can be extended for a number of reasons. For instance, a further 30 days is allowed where the decision-maker needs to consult with a state or territory government, an individual or a business as required under the Act, or with a foreign government or international organisation (ss 15, 26A, 27, 27A). Time may also be extended with the applicant’s agreement or with the approval of the AI Commissioner if the AI Commissioner is satisfied that the request is particularly voluminous or complex (ss 15AA, 15AB). Narrow grounds for deferring access are also provided (s 21).Adecision todefer access is reviewable on internal review, review by the AI Commissioner and subsequent appeal to the Administrative Appeals Tribunal ( AAT ). Exemption provisions Documents or parts of documents can be withheld if they are exempt under a specific provision under