Access to information

19 Aug 2016 - 13:57 | Version 1 |

There are many sources of public information that may be of assistance when taking action. Clues to corporate decision-making can be found by accessing company annual reports and literature. Information regarding government decisions may be sought under the Freedom of Information Act 1989 (ACT) ('FOI Act').

Freedom of information

Sometimes the information you require about a decision made by a government department may be available for a fee, or the department or agency may be willing to provide the information if an informal request is made politely. Email the relevant department and follow up with a phone call. Otherwise, the FOI Act provides guaranteed rights to obtain certain kinds of information.

The FOI Act was enacted as an accountability measure supporting a commitment to open government and transparency. The FOI Act creates a legal right for any member of the public to access certain documents held by ACT ministers, government departments and some statutory authorities. It also gives the public access to information about the organisation and operations of departments and agencies, including procedures used in decision-making and their arrangements for public participation. It may also be possible to peruse or purchase copies of manuals and guidelines, or parts thereof, used by government agencies for making decisions.

The types of documents accessible to the public under the FOI Act include procedure manuals, guidelines, files, reports, computer printouts, maps, plans, photographs, tape recordings, films or videotapes.

Whilst the public has a right to information, some information is subject to a number of exemptions. These include:
  • protection of personal privacy (s 41)
  • public safety (s 37)
  • law enforcement (police) activities (s 37)
  • where disclosure could prejudice the security of Australia, the ACT or other States (s 37A)
  • where all the work involved in an FOI request involves an unreasonable diversion of resources or interferes with the functions of the minister (s 23)
  • where documents would disclose trade secrets or diminish information containing commercial value (s 43)
  • where documents containing material that would constitute a breach of confidence (s 45).
Each government department has FOI officers to assist with the requests for information. You must identify the document or documents you want to access, for example, by giving the date the document was created or by describing in detail the matter in which you are interested. You then make a request either by writing to the department or by filling in an FOI application form (s 14).

The department or agency must acknowledge receipt of your request within 14 days. Further, the responding agency must notify you of its decision on access within 30 days (although this may be extended by 30 days in certain cases) and give you notice of any charges that are payable (ss 18 and 28). If you are granted access, you will receive a copy of the document or you will have the right to view the document at the department or agency. The document you see may contain sections that have been deleted or blacked out, for example, personal information about an individual may be deleted. If access is refused, you must be given a statement setting out the reasons why access was refused (s 25).

If you are unhappy about a decision that denies access to information or that imposes a charge, you can ask the department within 28 days of being notified of the original decision for an internal review (s 59). You will be notified of the reviewed decision within 14 days and, if access is still denied, you will be given reasons why access has been denied. If still unhappy, you can apply to the ACT Civil and Administrative Tribunal (ACAT) for a merits review or make a complaint to the Ombudsman (see below).

Application fees for FOI requests are now abolished. Processing charges may still be levied for work in excess of 10 hours processing time and/or 200 A4 photocopies (Freedom of Information (Fees) Determination 2015 s3(2); sch items 400(5)(e), 400(5)(f)). Applicants may wish to bear this in mind when formulating their request.

There is a similar process available under the Freedom of Information Act 1982 (Cth) for information held by Commonwealth departments and agencies. General information on FOI is available on the Australian Information Commissioner's website. See also the Environmental Defenders' Office (ACT) factsheet for further information about making Freedom of Information requests to the ACT and Commonwealth governments.

Parliamentary/Assembly processes

The first sitting of the ACT's Legislative Assembly took place on 11 May 1989 in rented premises at No 1 Constitution Avenue, Canberra City. The current Assembly running from 2012-2016, is comprised of 17 elected representatives: the Australian Labor Party holds eight seats, the Canberra Liberals eight seats and the ACT Greens one seat. The ACT Legislative Assembly's website contains up-to-date members and committee information, parliamentary documents, including minutes of proceedings, notice papers and daily programs (see Contacts list at the back of this book).

Assembly committees

Assembly committees are divided into two types, standing committees and select committees. Standing committees are established for the term of each Assembly and at the time of writing there are two committees dealing with environmental issues: the Standing Committee on Planning, Public Works and Territory and Municipal Services and the Standing Committee on Climate Change, Environment and Water. Select committees are created for a specific purpose; one example is the Estimates Committee where committee members examine proposed government expenditure. This provides an opportunity to ask questions of the majority government on the allocation of taxpayer's money.

Committees are made up of members of the government, opposition and independents, usually totalling about three to four members. Committee inquiries are often instigated because members of the Assembly perceive there is public interest or concern about an issue. In recent times, the Standing Committee on Planning, Public Works and Territory and Municipal Services held inquiries into the implementation of an action plan to combat climate change, and promoted public awareness of the potential for fast track development in the Planning and Development (Project Facilitation) Amendment Bill 2014.

Groups and individuals can contribute to committee inquiries by attending a public forum, lodging a submission, or appearing at a hearing. A committee inquiry is usually advertised in the Canberra Times or on the Legislative Assembly website. Recently, the inquiry into the action plan on climate change implemented strategies on how to promote environmentally sustainable measures to assist members of lowincome households. Following an inquiry, the committee will report to government on its findings and may make recommendations for change.

The government provides a response to the recommendations, usually within three months, outlining what recommendations it has accepted, those it has not, and the reasons why.

Question time and questions on notice

Questions and questions on notice can be an effective way of obtaining information from government which is not obtainable by other means. Community groups can participate by requesting Legislative Assembly members to ask questions of the government.

Annual reports and Auditor-General reports

Another useful source of information are the annual reports of government departments and agencies. Annual reports are produced at the end of each financial year, usually printed in September, and are publicly available.

Commonwealth department annual reports must include information on how the department or agency activities and administration of legislation accords with the principle of ecological sustainable development (ESD) as required by section 516A of the Environment Protection and Biodiversity Conservation Act 1999.

The Auditor-General is responsible for undertaking audits of management performance and financial statements of Commonwealth government bodies.

These reports are one method of ensuring accountability in the executive arm of government.

In the ACT, the Commissioner for Sustainability and the Environment in the ACT produces State of the Environment reports for the ACT (Commissioner for Sustainability and the Environment Act 1933 (ACT) s19), and information from ACT departments and agencies may be included in this report. Note that ACT government bodies are no longer required to report on environmental sustainability in their annual reports since the repeal of section 158A of the Environmental Protection Act 1997. As a result, only general information is provided on a variety of activities that each department has undertaken throughout the reporting year, depending on the level of commitment and the culture of that department.

Matters of public importance

Matters of public importance are a topical issue of concern to the community which is suggested for discussion by a member of the ACT Legislative Assembly. They can be a useful way of raising an issue by means of petitions or submissions. A member of the Assembly may propose that a matter of public importance be submitted to the assembly for discussion. The Speaker places all submitted matters of public importance into a hat and randomly selects the matter that will be called on. No decision has to be reached by the end of the discussion, but it gives members the opportunity to express their views on the issues. These matters are quite often critical of a facet of the government's activities and are an effective way to make the government accountable for its actions and to start a discussion, which could lead to review or change. The Legislative Assembly (ACT) publish the topics of these Matters of Public Importance through a newsletter on their website.

Presenting petitions, submissions and letter writing

A petition is a written request, calling for the redress of a grievance or seeking action, presented to the Legislative Assembly by a member. The request must be written on every page containing signatures. All petitions must be respectful, accurate and reasonable. The ACT Legislative Assembly website has more information on petitions, including the format of a petition, and contact details for all MLAs (see Contacts list at the back of this book). When writing a letter or a submission be polite and address the issue in question using headings and concise expressions. Submissions may have a prescribed format which you will need to adhere to.

The public has access to multiple platforms through which to communicate its concerns. One example is Time to Talk, an initiative launched by the ACT government, which provides an online platform where members of the public can discuss individual or local issues. This can be done though posting comments, sending a submission, via discussion forums, surveys or Twitter.

ACT Ombudsman

The ACT Ombudsman has broad powers under the Ombudsman Act 1989 (ACT) to investigate complaints that relate to matters of administration, including complaints regarding ACT government agencies, ACT policing, how an FOI request was handled, and whistle blower complaints. In some instances, the ACT Ombudsman refers complainants to other review agencies that can more appropriately deal with the issues raised (ss 6A and 6B). Issues presented to the Ombudsman may include complaints about the environment, but the Ombudsman has a limited role in the environmental area. Specific responsibility for investigating complaints about the management of the environment in the ACT lies with the Commissioner for Sustainability and the Environment and complaints regarding environmental administration will generally be referred to the Commissioner (see below). The ACT Ombudsman does not investigate actions taken by:
  • the territory or a territory authority for the management of the environment
  • the Commissioner for Sustainability and the Environment
  • a minister
  • a judge or magistrate or tribunal (s 5(2)).
The distinctive feature of the ACT Ombudsman is that its findings are not determinative or final (unlike a court or tribunal). The Ombudsman's powers are recommendatory only; he/she investigates a matter and produces a report in which recommendations may be that the government department undertake one of the following actions:
  • reconsider or change its decision
  • apologise
  • change a policy or procedure
  • any other any recommendations he or she thinks fit (s 18).
The Ombudsman also has the option of publicly airing his/her recommendations if an unsatisfactory response is received from the government. This can sometimes be embarrassing for the government department concerned.

Making a complaint

The Ombudsman provides a free service. Complaints may be made by going to the Ombudsman's office, by telephone, in writing (by letter, email or facsimile), or by using the online complaint form on the Ombudsman's website (see Contacts list at the back of this book). Complaints will be accepted anonymously.

The Ombudsman's website includes tips on making a complaint:
  • keep track of conversations with the government agency--ask for a reference number and names
  • set out your complaint clearly and briefly--stick to main facts do not go into excessive detail
  • if detail is necessary, it is useful to set it out in the format of a timeline
  • include information about each contact with the agency and what happened with details of who you spoke to, or who wrote to you
  • record any steps you have taken to sort out the problem
  • keep any relevant documents, including all correspondence with the agency
  • be persistent with the agency to progress your complaint.
You can also suggest to the Ombudsman what action you think should be taken to resolve your complaint. Keeping accurate records is also useful when considering pursuing legal action (see section below on Legal Remedies).

Commissioner for Sustainability and the Environment

The position of ACT Commissioner for the Environment was established under the Commissioner for Sustainability and the Environment Act 1993 (ACT), and is an alternative complaint mechanism to the Ombudsman for issues relating to the management of the environment by the Territory or territory authority, or issues relating to ESD in the ACT (s 13). This role and title was expanded in 2007 to include sustainability. In that role the commissioner shall:
  • produce State of the Environment reports for the ACT every 4 years --at the time of writing, the 2015 report is being prepared
  • investigate complaints from the community regarding the management of the territory's environment by the ACT government or its agencies
  • conduct investigations directed by the minister--for example, in 2011 the Minister for the Environment directed that an investigation into the state of watercourses and catchments for Lake Burley Griffin be initiated, which resulted in the 2012 report concluding that water quality in Lake Burley Griffin will nurture blue green algal blooms for the next 20 years unless the situation is rectified
  • initiate investigations into actions of the ACT government or its agencies, where those actions have a substantial adverse impact on the territory's environment
  • make recommendations for consideration by the ACT government, and include in the annual report the outcomes of those recommendations.

Making a complaint

Section 12 of the Commissioner for Sustainability and the Environment Act sets out what the commissioner can and cannot investigate. Under section 12(2), the commissioner is not authorised to investigate action taken by any of the following: Section 14 details the discretion available to the Commissioner not to investigate certain complaints, similar to the Ombudsman's powers.

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