Reasons for decisions
Where an agency or minister refuses an applicant’s request for access to documents or defers access to documents, the decision-maker is required to give written reasons for the decision and to tell the applicant about their rights to have the decision reviewed (s 26). If the applicant has requested that any charges be reduced or waived, the decision-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 denied access?
An applicant who is denied access may apply for the decision to be reviewed by either the agency (internal review), usually by a different, more senior agency officer, or directly by the AI Commissioner (pts VI, VII). An application for review must be made in writing and within 30 days after the day the decision is notified to the applicant or, in the case of access review, 15 days after the day the access was given (ss 54B, 54S).
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)). 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 a The right of any person to access documents held by government agencies, except documents excluded by legislation. 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 A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. (Cth) make it desirable’ (s 54W(b)).
If an applicant disagrees with the AI Com-missioner’s review decision, they may lodge an The review of the decision of a lower court by a higher court. If an appeal is successful, the higher court can change the lower court’s decision. 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 $932. 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 by 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 An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. on a question of law (s 56(1)).
Amending personal information
If an agency’s or minister’s document (to which access has been provided) contains personal information about a person, that person may apply for the A change made to a legal document or Act of parliament. or annotation of any information considered to be incomplete, incorrect, out of date or misleading (s 48).
Where an agency or minister refuses an application for amendment, they must enable the applicant to instead apply for their personal information to be annotated by adding a statement explaining their reasons for claiming that the information is incomplete, incorrect, out of date or misleading (ss 51, 51A). However, an agency is not required to add an annotation as requested if it considers the statement to be irrelevant, defamatory or unnecessarily voluminous (s 51B(2)).
There is no fee for either application. The right to amendment only applies to personal information that has been or is being used for an administrative purpose (s 50(1)(c)).
The amendment provisions under Part V of the FoI Act (Cth) operate alongside the relevant provisions in the Privacy Act 1988 (Cth).
The same rights of internal review, review by the AI Commissioner and appeal to the AAT apply where a request for amendment or annotation is refused.
Fees and charges
There is no fee for asking to access documents. However, agencies and ministers can (1) A statement giving the details of a crime an accused person is claimed to have committed. (2) A personal property security. (3) A judge’s directions to a jury at the end of a case. fees for processing requests to access documents (s 29). These The amount charged by a lawyer for legal work. Lawyers can only charge the amount agreed with the client in a costs agreement or the amount stated by a court in its rules. The party who loses a case usually has to pay all their own costs plus most of the costs reasonably incurred by the other side. See also indemnity costs. are set out in the Freedom of Information (Charges) Regulations 2019 (Cth) (‘FoI Regulations (Cth)’) and are summarised above.
Two important exceptions exist where no charges apply. First, where an applicant requests access to their own personal information, including income support information, no charge is payable (reg 7(1) FoI Regulations (Cth)). Second, an agency or minister cannot charge a fee if they don’t make a decision about an access request within the Found in a statute of delegated legislation. For example, a statutory authority or body is aperson or organisation that has special powers given by parliament to do work for the public benefit. time limits, unless they have an extension (regs 7(2), 7(3)).
Where an agency or minister decides that the applicant is to pay a charge in relation to their request for access to documents, the applicant is to be provided with an estimate of charges and how the charge is calculated (s 29(1)(b)). If the applicant does not accept the estimate, or does not seek to have it reviewed within 30 days, the freedom of information request is Treated by the law as if something is the case, even if that is not the reality. For example, children may be deemed to have the same home as their parents, whether they actually live there or not. Or a person may be deemed to have given their consent to something if they hear about it and do not object. Compare rebuttable. to have been withdrawn (s 29(2)). Applicants can elect not to continue with the application after being advised that charges may apply.
Applicants can ask for charges to be reduced or waived at any time on any grounds. In considering the applicant’s request, the agency or minister must consider whether paying the charge would cause financial hardship and whether giving access to the document is in the public interest (s 29(5)). An agency or minister can still decide to impose a charge even though it would cause the applicant financial hardship or Providing information to another person or institution as required by a contract or other legal process. would be in the public interest. However, there is a right of internal review, review by the AI Commissioner and appeal to the AAT on the imposition or amount of the charge.
|For request to access||$0.00|
|For application for internal review||$0.00|
|Search and retrieval, per hour||$15.00|
|Decision-making time, per hour||First five hours: $0.00; |
each subsequent hour: $20.00
|Extraction and production of written documents from computers or other equipment||At cost|
|Reproduction of computer information onto computer disk||At cost|
|Transcripts of sound recordings, shorthand, etc., per page||$4.40|
|Photocopies of written documents, per page||$0.10|
|Copies, other than photocopies, of written documents, per page||$4.40|
|Replaying or copying disks, etc.||At cost|
|Supervised inspection, per half hour (or part thereof)||$6.25|
|Dispatch to an address at the applicant’s request||Cost of postage |
Fees and charges under the Freedom of Information Act 1982 (Cth)