The Law Handbook 2024

Chapter 12.3: Freedom of information law 1131 maker must also give written reasons for the decision and tell the applicant about their rights to have the decision reviewed (s 29(8)–(9)). Reasons must also be given where an agency or minister refuses an applicant’s request for personal records to be amended or annotated (s 51D(3)). In addition, where the decision-maker has relied on a conditional exemption, they must include in their written reasons the public interest factors they took into account in making their decision (s 26(1)(aa)). What if I am refused access? An applicant who is refused access may apply for the decision to be reviewed by either the agency ( internal review ), usually by a different and more senior agency officer, or directly by the AI Commissioner (pts VI, VII). An application for review of an access refusal decision must be made in writing and within 30 days after the day the decision is notified to the applicant (ss 54B). In the case of an internal review, the agency must make a review decision within 30 days (s 54C). If the applicant is not subsequently satisfied with the outcome of the internal review, they may seek to have the internal review decision reviewed by the AI Commissioner (s 54L(2)(b)). An application for review of an access refusal decision by the AI Commissioner must be made within 60 days after the day the decision is notified to the applicant (s 54S(1)). There is no fee for either the internal or AI Commissioner’s review. The AI Commissioner has the power to affirm, vary or substitute a new decision for an FoI decision made by an agency or minister (s 55K(1)). The AI Commissioner may also decide not to review the decision in a number of circumstances (s 54W). For example, they may decide to refer the decision to the AAT if they are ‘satisfied that the interests of the administration of the FoI Act (Cth) make it desirable’ (s 54W(b)). If an applicant disagrees with the AI Commissioner’s review decision, they may lodge an appeal with the AAT for a full merits review (s 57A(1) (a)). A decision made by the AAT ‘has the same effect as a decision of the agency or minister’ (s 58(1)). The standard application fee for an AAT review is $1,082. Applicants may be eligible to pay a reduced fee of $100, if, for example, the applicant is receiving legal aid for their application, is receiving certain Centrelink benefits, or faces financial hardship in paying the full fee. Information about application fees for an AAT review is available at www.aat.gov.au. An applicant may appeal a decision of the AI Commissioner to the Federal Court on a question of law (s 56(1)). Commonwealth FoI: Managing my information Who has access to my personal documents? A requested document containing another person’s personal information may be disclosed to an applicant where disclosure is not unreasonable and not contrary to public interest (s 47F). The FoI Act (Cth) provides for a process of consultation by agencies or ministers before certain documents containing an individual’s personal information are released (s 27A). Where consultation is reasonably practicable, an agency must not grant access to these documents without first consulting with the individual concerned, unless it is clear that there could be no objection (e.g. the information is well known or publicly available). If the agency still decides to release the documents, they must notify the individual concerned (s 27A(5)). In certain cases, an applicant is asked to nominate a ‘qualified person’ (defined in s 47F(7) FoI Act (Cth)) to cover medical practitioners, psychiatrists, psychologists, counsellors and social workers) to whom the agency or minister can provide information about the applicant, rather than to the applicant directly. This occurs where the agency or minister believes that disclosing the information to the applicant might be detrimental to the applicant’s physical or mental health or wellbeing (s 47F(4)(b)). Who has access to information about my business or professional affairs? Under the FoI Act (Cth), an applicant’s access to requested documents about the business or professional affairs of third parties may be limited where, for example, disclosing the information to the applicant ‘would, or could reasonably be expected to, unreasonably affect that person adversely in respect