What is Freedom of Information?

Contributed by Dr James Popple and current as at 5 December 2021.

Freedom of Information (FOI) is the legal and administrative framework in which citizens have a right to access government information.

Documents held by Commonwealth agencies and ministers are covered by the Freedom of Information Act 1982 (Cth) (FOI Act(Cth)). Documents held by ACT Government agencies and ministers are covered by the Freedom of Information Act 2016 (ACT) (FOI Act (ACT)). The objects of both Acts make it clear that they are intended to provide a right of access to information held by government, promoting representative democracy: FOI Act (Cth), s 3; FOI Act (ACT), s 6. Both Acts also encourage the release of government information, even if no request has been made: FOI Act (Cth), ss 3, 3A, Part II; FOI Act (ACT), ss 6, 9, Part 4.

This right to access is not absolute. Documents generated by, or held by, some agencies are not covered by FOI legislation (for example, documents of intelligence agencies). Some classes of documents are also not covered by FOI legislation (for example, documents held by ministers relating to their personal or political activities; and documents held by certain agencies that relate to their commercial activities). And, access can be refused (in part, or in full) to a requested document that is covered by FOI legislation, if an exemption applies to that document.

What information is covered?

The FOI Act (Cth) provides a right to access "documents": s 11. The FOI Act (ACT) provides a right to access "government information": s 7. The FOI Act (ACT) goes on to define "government information" to mean information that is "contained in a record": s 14. Each Act has a broad definition of what is meant by "document" or "record", and there is no requirement that the "document" or "record" be in paper form. But neither Act requires the disclosure of government information that has not been recorded in some way. That means that there is no obligation on an agency or a minister to create a new document or record in response to an FOI request. However, in some circumstances, a document or record may be provided in a different form than the form in which it was requested: FOI Act (Cth), s 20; FOI Act (ACT), s 47.

Can I make an FOI request?

Each Act provides that "every person" has the right to make an FOI request: FOI Act (Cth), ss 11, 15(1); FOI Act (ACT), ss 7, 30(1). The person making a request does not have to be an Australian citizen, or a resident of Australia or of the ACT. Requests can be made by companies or associations. Requests can be made anonymously, but must include contact details (which could be simply an e-mail address). However, if you make a request for a document that contains your own personal information, you may be required to provide proof of your identify, if the request is made under the FOI Act (Cth); and you must do so if the request if made under the FOI Act (ACT): s 30(3).