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Freedom of information

22 Sep 2016 - 16:27 | Version 21 |

Contributed by CarolineNorrington and current to 1 May 2016

What is Freedom of Information?

Freedom of Information (FOI) is a process which allows you to apply for and (subject to some exemptions) get government information. Each State and Territory has an FOI scheme. FOI enshrines into legislation the principle that the government governs on behalf of the people, and so holds information on trust for the people.

The NT FOI scheme

The Northern Territory Information Commissioner provides information and assistance for the Northern Territory FOI scheme created by the Information Act 2002 (NT) (NTIA). The NTIA allows you to apply for information held by NT government organisations. An NT government organisation is subject to the scheme if it is defined as a public sector organisation. The definition includes not only Departments, but local councils, statutory authorities, and contract service providers to the extent they are handling personal information on behalf of the NT government under a service contract. It applies to courts and tribunals in respect of information relating to their administrative (rather than judicial or quasi-judicial) functions.

Government information is defined to mean records, which are defined as recorded information required to be kept as evidence of a public sector organisation's activities or operations. Arguably this excludes 'ephemeral information' (temporary information not required to be kept) even if it is recorded. The information must be held by a public sector organisation, which is broadly defined to include possession or control, whether alone or jointly with another organisation.

The Commonwealth FOI scheme

The Office of the Australian Information Commissioner ('OAIC') contains a repository of information and assistance for the Commonwealth FOI scheme created by the Freedom of Information Act 1982 (Cth) (FOIA) .

The FOIA allows you to apply for documents held by Commonwealth government organisations. Document is defined broadly to include any recorded information. It is not limited to paper documents.

A Commonwealth organisation is included if it is an agency (including a prescribed authority), but does not include certain organisations or documents that originated from certain organisations. It only applies to courts and tribunals in respect of documents relating to their administrative (rather than judicial or quasi-judicial) functions. If a contractor or subcontractor generates documents in the course of working for a Commonwealth agency, these documents are also potentially accessible by making an FOI application to the agency, as the agency should have arrangements in place to access these documents.

What if I want information about a private individual or business?

FOI only allows you to apply for government information.

If a private business holds personal information about you, and the business is subject to federal privacy laws, it may have to disclose that information to you upon request under APP 12 of the Australian Privacy Principles (APP). Entities subject to the APPs include small business owners, which covers businesses with an annual turnover of more than $3 million. This is a different process from FOI. The Australian Privacy Commissioner can provide more information about this process.

The government collects information about businesses or individuals in the course of performing their government functions. If the government holds information about a business or individual, you can apply to the government for that information using FOI. However, before such information will be released to you, the government will contact the private individual or business and seek their views on whether the information should be released. They may object because disclosure would be an unreasonable interference with their privacy, or would reveal confidential information which would cause their business disadvantage. If they can establish a reasonable objection, you may not be able to access the information unless you can establish strong reasons why you should have the information.

If you need to access information about a private individual or business for the purpose of court proceedings, you should speak to a lawyer about processes such as discovery and subpoenas.

Is FOI the best way to get hold of the information?

FOI is not always the quickest or cheapest way to get information.

FOI may not be suitable if:
  • the information is already publicly available for free or at a reasonable fee
    • (eg. information from the Land Titles Office). Information that is already publicly available for free or at a reasonable fee cannot be obtained through the FOI process due to s 12 of the NTIA and s 12 of the FOIA .
  • the information is needed quickly
    • FOI can be a lengthy process. While the legislation provides a time frame of 30 days for an initial decision ( s 19 of the NTIA , s 15 of the FOIA , and much information is released in 30 days or less, if this time frame is not complied with or you are refused access to the information, it can take longer. It is not unknown for the processes of reviewing or appealing the decision to continue for up to a year.
  • the request is very large
    • An organisation can refuse to process a request if the work of doing so would cause an unreasonable interference to its operations ( s 25 NTIA ) or would substantially and unreasonably divert the resources of the agency from its other operations ( s 24AA FOIA ).
    • A large request for information that is not about you personally can attract substantial fees. The processing fees for the NT scheme can be found in the Schedule to the Information Regulations . The processing fees for the Commonwealth scheme can be found in the Schedule to the Freedom of Information (Charges) Regulations . A waiver of fees can be sought if the fees would cause financial hardship to the applicant or if there are public interest reasons to waive the fees ( s 156(6) NTIA , s 29(5) FOIA ).

Ask first

A lot of information can be obtained by simply approaching the right people and asking. Your first step should be to approach the government organisation that you believe holds the information and ask to speak to their freedom of information unit. Explain what information you want, and ask what your options are for accessing that information. Most commonly requested information (eg. your own health records, criminal histories) can be obtained through alternative processes, requests, or negotiation.

Medical records

You can usually obtain your own medical records by contacting the relevant health provider (eg. contact your GP for their records, contact an individual hospital for its records etc). This is usually faster and simpler than the FOI process for this purpose.

If you have chosen to allow your health provider to use the Commonwealth Government's 'My Health Record' scheme (formerly known as your 'Personally Controlled Electronic Health Record') you can also view the medical records you have in that system online.

If a private health provider refuses you access to your medical records, contact the Australian Privacy Commissioner about reviewing this decision. Private clinics and hospitals are obliged to provide you with your own medical information under the Privacy Act 1988 (Cth) (health providers are organisations which are entities under the Act irrespective of whether they have the $3 million annual turnover which excludes other kinds of small businesses).

If an NT public health provider refuses you access to your medical records, you can apply to the NT Department of Health for access to the records using FOI.

Occasionally, medical records contain information that may be traumatic if misunderstood by the patient. In these cases, the health provider may decide to provide you with supervised access, or may even deny you access altogether.

Criminal history

To obtain a copy of your criminal history, you should contact SAFE NT. At the time of writing, $57 would provide you with a copy of your criminal history in all jurisdictions (ask for a 'national police certificate'). This will not include charges which were withdrawn or dismissed, or spent convictions. If you would like information about your withdrawn, dismissed, or spent criminal history matters, SAFE NT can provide this in relation to matters in the NT. If you want information about such matters interstate, you will need to follow that up with interstate bodies.

Other people, such as employers, can only request your criminal history from police if you sign a form giving your consent. A normal criminal history check does not disclose 'spent' convictions, and you should not consent to this unless you are applying to work in security and law enforcement, or as a carer or teacher. Some jobs with high security clearances require you to consent to a fingerprint check.

Government reports

NT public sector organisations must publish annual reports detailing their structure, functions, the kind of information they hold and how it can be accessed. These reports must be available for inspection and purchase. Most NT Government departments publish their annual reports on their webpages in a 'publications' section. Many publish additional information in this way, such as discussion and research papers, newsletters, and even internal guidelines and procedures.

Personnel records

If you are a government employee, your workplace should have processes for allowing you to access your personnel records. Reasonable access to personal information held about you is required by privacy laws.

If you have been employed by a Commonwealth Government agency, you cannot make an application for your personnel records under FOI unless you have already made an effort to use the agency's procedures for accessing such records ( FOIA s 15A).

Making an FOI application

Preliminary steps

Identify which organisation holds the information

An organisation can only provide you with information that it holds, so you must apply to the right organisation to get the information you want. If you are unsure which organisation holds the information, make some preliminary enquiries to find out. The NT Information Commissioner keeps a list of FOI contacts for NT government organisations on its website.

Section 29 of the NTIA and section 16 of the FOIA have provisions that allow an organisation that doesn't hold the information to transfer your application to another organisation that holds the information. However, this is optional for the organisation, and causes the 30-day time limit to start from the beginning, so it is worth making an effort to pick the right organisation to begin with.

Pay the application fee (if applicable)

If you are making an application under the NTIA, whether you pay an application fee depends on whether you are just requesting your own personal information (meaning information from which your identity is apparent or can reasonably be ascertained). If your application just concerns your personal information then there is no application fee. Otherwise, the application fee is $30. You can pay this by sending a cheque or money order with your application in the amount of $30, made out to 'The Receiver of Territory Monies'. Alternatively, prior to making your application you can pay this amount directly to the Receiver of Territory Monies and get a receipt, and attach the receipt to your application. You can pay the Receiver of Territory Monies by credit card on (08) 8999 1606, and you will be sent a receipt by email that you can attach to your application.

If your personal circumstances are such that you could not reasonably afford the application fee, or the information you are requesting is of substantial public interest, you can request the organisation waive the fee. If they refuse to waive the fee you can request a review of this decision and ultimately complain to the Information Commissioner. However, please note that an organisation will not start processing your application until they have either received a fee or decided to waive it (or been directed to waive it), so a dispute over fees can cause substantial delays.

If you are making an application under the Commonwealth FOIA, there is no application fee.

Have suitable ID documents ready

Under the Commonwealth FOIA scheme, you are not required to provide ID unless you are applying for your own personal information.

Under the NTIA an organisation must satisfy itself as to your identity before it processes your application, no matter what kind of information you are seeking.

You should contact the organisation to ask what ID they accept. It would be usual to be asked to produce a copy of identification like a driver's licence or passport, and some organisations require the copy to be certified. If you are known to the organisation, you may be able to approach them in person and have them satisfy themselves as to your identity when you lodge the application.

If you are making an application on behalf of another person, include a copy of the legal document which shows you have this authority (eg. written authorisation to provide legal services, Power of Attorney, child's birth certificate showing you are the parent) and clarify whether you are making the application on behalf of the other person or in your own right. Depending on the situation and the kind of application, you may need to provide ID for both yourself and the person you are representing.

Writing the application

Technical requirements

Applications under the Commonwealth FOIA scheme must be made in accordance with the FOIA s 15, and NT applications must be in accordance with the NTIA s 18.

Both schemes require you to make your application in writing. There is no requirement to use a standard form, but many organisations provide forms to guide you.

Your application should state:
  • That it is an FOI application under the relevant legislation;
  • An address for correspondence (this can be an email address);
  • If under the NTIA or for personal information under the FOIA, your name and what identification documents you are relying on;
  • An application fee if applicable (see above);
  • What information you want them to give you, as precisely as possible.
How to describe the information you want

A poor description of the information
'I want everything you have about me.'

A better description of the information
'I was in a traffic accident in early June 1998. It was on the Stuart Highway, 90 kilometres south of Katherine. It happened at about 9pm. Police attended. One of them was Sergeant Rogers or Kroger or something like that. The police interviewed me and my wife and the driver of the other car. His name was O'Sullivan. We drove a white Toyota Corolla, licence plate number ABC123. He had a green Ford. The ambulance also came. I want all police reports about the accident.'

When specifying the information you want, you should consider that:
  • Organisations can be large and the person processing your application may not have any knowledge of you and your matter. If you know who or which area is likely to hold the information you want, you may want to state this in your application.
  • A smaller, more targeted request is faster to process, will involve lower processing fees, and is less likely to be rejected on the basis that it is too large;
  • Organisations can take your wording very literally so be careful you don't accidentally exclude information you want;
  • Do you want to include or exclude information held in particular formats or particular systems (eg. hardcopy, email, electronic files, just records on a particular database etc.)?
  • Do you want drafts and copies included? Government processes often involve circulating or attaching the same document to multiple pieces of correspondence, and so it is common to locate repetitive material in response to an FOI request;
  • A good way to be more specific is to look for information created in certain time periods (eg. 'I want all emails from Joe's government email account for the month of May 2015', or 'I want a copy of all records relating to my complaint against the Department from November 2014 to the present') or held by certain employees (eg. I want the search limited to the email accounts of Joe, Jane, and any persons who were their direct supervisor for the month of May);
  • You can only request existing records. This has two implications:
    • If the record has been lost or destroyed, it cannot be provided to you. Unless it's your personal information, you are probably not entitled to an explanation of why it does not exist. All you will obtain through FOI is a copy of what exists at the point in time your application was made / is processed.
    • You can't demand an organisation answer a question, or summarise/analyse their information for you. For example, if you request 'The average number of days employees in your organisation take sick leave', and the organisation does not already have a document with the answer to that question written on it, you will get nothing. The organisation will attempt to locate what you ask for in a very literal sense. If you expect that the organisation may not have a document with the summary / analysis, it would be advisable to instead request documents with the information you need to calculate the answer yourself.
  • Do you know how the organisation stores this sort of information? If you're not sure, ring their FOI or information section and explain what you're after and discuss how you could best word your application to accurately describe what you want.
Should you explain why you want the information?

You have a right to request information for any reason or no particular reason. However, providing good reasons can make it more likely that you will obtain the information you seek. If relevant, consider briefly covering the following dot points in your application:
  • why it's in the public interest to provide me with this information
  • why providing this information will make a difference to me / other individuals.

Making the application

Send your written application to the organisation. You can usually deliver it in person or send it to an email address if you prefer - check with the organisation for the address. Include appropriate ID, and a cheque or evidence you have paid the fee, if applicable. Keep a copy of your application and the date it was sent.

What happens after I make an application?

What the organisation does

The organisation processes your application. If your application is very large, the organisation's FOI officers may initially conduct some sample work to see how long it takes, and then make an estimate of the time it would take to process the entire application in order to estimate the relevant processing costs.

Once any preliminary issues of validity or charges are resolved, the officers conduct searches, or send requests to other persons to conduct searches. They collate all the information located, then they narrow that information to just those documents (electronic or hardcopy) that fit within your request. The documents that fit within your request are said to be 'in scope'.

The officers then must carefully consider whether the documents contain information that may be exempt, in which case they need to consider whether it shouldn't be released, and/or information about other persons and businesses. If the information is about other persons or businesses, they need to contact those persons and give them a reasonable period of time to provide their views about whether they want their information disclosed.

The officers may decide to release some pages and not others, or may release some pages with redactions (meaning some of the information is blanked out). In this case, they must go through a process of scheduling and/or redacting the documents, and writing up the reasons for their decision.

How should I respond if the organisation contacts me with a question about my request?

An organisation may contact you to clarify what you mean by your request, or to warn you that they believe the size of your request is too large and that if you do not narrow the scope, they will dismiss your request.

If you have made a large application under the Commonwealth scheme, you should expect the organisation to go through a formal process of deciding whether a practical refusal reason exists to refuse access to the information, which includes a request consultation process specified by the FOIA. Under NTIA s 25(2), an organisation cannot refuse access to a large application unless the organisation and the applicant are unable to agree on a variation, which necessarily requires some kind of consultation.

If you can answer the questions they ask, do so. Usually, these are genuine questions by people who want to process your request as accurately and efficiently as possible.

Respond promptly to questions and consider covering the following points:
  • express your desire to lodge a reasonably sized request and your hope that they can assist you to find a workable solution;
  • ask how you could reduce your request by ruling out certain formats, systems, or search methodologies (and indicate that they could assist you given they have knowledge of their records keeping systems that you don't have);
  • indicate that you are willing to meet or have a discussion by telephone;
  • ask to know how much of an interference your application is estimated to cause if processed, the basis for this estimate, and how much they say you'd need to reduce it by in order for it not to be unreasonable;
  • ask for explanations of any government acronyms or jargon you don't understand; and
  • set out any ways you can see that their process would be more efficient (for example, if they're proposing to spend hundreds of hours asking 50 officers to check their emails, but you know that the email will only be in the account of 5 particular officers, tell them this, because that will greatly reduce the estimate of the time it will take to process).
Keep a written record of any letters discussing the scoping of your request, because they may become evidence you wish to rely on later.

When will I get a decision?

Under both the NT and Commonwealth schemes, the default position is that you will be notified of a decision about your application within 30 days ( NTIA s 19, FOIA s 15(5)(b)).

However, there are a number of reasons why this may not occur within this timeframe:
  • if your application did not check all the boxes required by legislation, it may be invalid, and the time limit won't start to run;
  • there may be a need to clarify or reduce the scope of your application;
  • the information may be large and/or difficult to locate;
  • third party consultation is necessary (seeking the views of other persons or businesses mentioned in the information you have requested) and this may be difficult to achieve within 30 days;
  • if the information is non-personal, the organisation may require you to pay a deposit of up to 50% of the estimated cost of processing your application, and may not proceed with processing your request until you do so; or
  • the organisation deems that the information you've requested is held by or more closely connected to the functions of another organisation, and transfers the request to them ( NTIA s 29, FOIA s 16).

What if I'm not happy with the decision I get?

You can challenge the decision by lodging an application for internal review (see below).

Approximately 7% of decisions in the NT are contested. Decisions which are contested tend to be contested when the applicant believes that the organisation:
  • did not conduct adequate searches and has failed to locate information that exists;
  • has incorrectly applied the law and withheld information they should have received;
  • did not adequately explain their decision.
Note that if you are claiming the search conducted was insufficient, in practical terms you will need some kind of evidentiary basis to make this claim or it is unlikely to get far. For example, if you have a copy of a document that you would have expected to be found by the organisation in response to your request, but it was not located, you may suggest that this is a reason to suspect the search was insufficient.

You should expect a decision with some detail. If information has been refused because an exemption has been applied, you should usually at a minimum be told which exemption has been applied and the relevant section of the NTIA ( NTIA s 24). However, it is not unusual for some reasons to be a bit cryptic, since the organisation must explain its position to you without revealing the exempt information.

Can I do anything if I don't get a decision within 30 days?

Under the NT scheme, if an organisation has not made a decision within 30 days, they are deemed to have refused your application ( NTIA s 19(7)). The organisation may contact you and request additional time, but it is up to you whether you grant additional time. Organisations are expected to be organised and resourced enough to process most reasonable applications within the 30 day time period. If you believe the organisation is likely to deliver the information you want if granted a little additional time, then you may wish to agree. However, if the process is time critical, or you have doubts that the organisation is devoting reasonable efforts to efficiently process your application, then you should lodge an application for internal review (see below) immediately after the 30 day period expires. The reality is that there are no consequences for an organisation that fails to meet the statutory time frames, other than you lodging an application for internal review, which is the next step that must be taken before a complaint to an external review body.

Under the Commonwealth scheme, if you have heard nothing within 30 days, your application is deemed to have been refused (FOIA s 15, s 53A). However, if the organisation has informed you in writing that the third party consultation process requires additional time, it is not a deemed refusal until that additional time has elapsed. The time frame can also be extended if an organisation applies and obtains the permission of the Information Commissioner (FOIA s 15AC). If the allowable time period has passed and you do not have a decision, you can apply for internal review (see below).

Applying for internal review

If you are unhappy with the decision, or don't receive a decision within the relevant time period, you can challenge this by lodging an application for internal review ( NTIA s 38, FOIA s 54B).

Under the Commonwealth scheme, you may only have 15 days to lodge an application for internal review. It can sometimes be longer, but you should check the relevant provisions ( FOIA s 54B), as a late application can be validly rejected, and you will not be able to appeal further. If you believe the decision has wrongly applied the law and you should have been provided access to certain information, this is a matter you complain of to the Information Commissioner. If your concerns relate to delays or poor processing of your application (eg. a 'customer service' type complaint) under the Commonwealth scheme, your complaint should be made to the Commonwealth Ombudsman.

Under the NT scheme, there is a nominal period of 30 days to lodge an internal review application. If you miss this time frame, you can still lodge a valid application for review, but the organisation can decide to confirm its original decision without giving your application further consideration ( NTIA s 39(2)). If the organisation does this, and you are still unhappy, you can complain about this decision to the Information Commissioner.

Under new amendments due to commence in May 2016, NT organisations will be able to refer a request for internal review straight to the Information Commissioner rather than reconsidering their initial decision. Whether this occurs is up to the organisation; you cannot demand that it occurs.

What is 'exempt' information?

Freedom of information schemes provide 'exemptions'. These are reasons the organisation is legitimately allowed to refuse you access to information. If the organisation cannot point to a relevant exemption, they cannot refuse you access. Exemptions are set out in Part 4 of the NTIA and Part IV of the FOIA.

Some common exemptions applied to refuse access to information include:
  • when providing the information would unreasonably interfere with an individual's privacy ( NTIA s 56, FOIA s 47F)
  • when the information is subject to client legal privilege ( NTIA s 49, FOIA s 42)
  • if it would reveal a private business' commercially sensitive information ( NTIA s 57, FOIA s 47G)

You are very unlikely to obtain information which reveals confidential Cabinet communications, or confidential matters of security and law enforcement such as police intelligence.

Some exemptions, however, are subject to a further 'public interest test', which requires the organisation to prove not only that the exemption applies, but that it is also not in the public interest to release the information (see NTIA s 50; FOIA s 31A, s 11B and ss 47B-47J).

It is up to the organisation to work out what, if any, exemptions they wish to apply, and it is up to the organisation to defend its decision to apply the exemptions it relies upon. However, if you need more detailed advice on the application of exemptions, you can contact the NT Information Commissioner about the NT scheme, or the Australian Information Commissioner about the Commonwealth scheme.

The public interest test

The public interest test is essentially a balancing exercise between public interest considerations that favour disclosure and those that favour non-disclosure. 'Public interest considerations' refer to factors affecting the wellbeing of the community and good functioning of governmental affairs that are accepted to be for the good order of society. Generally something will relate to the public interest if it is a consideration common to a substantial segment of the community eg., concerns about proper delivery of mail by the post office. It must be more than just something that some people may find interesting.

There is no complete list of public interest considerations; however, the following examples may give some indication of what is considered relevant.
Public interest factors favouring disclosure Public interest factors favouring non-disclosure
Government accountability Health and safety of a person
Public participation in government Efficient and effective conduct of government operations
Public awareness Individual's right to privacy
Ensuring justice to an individual
The following factors are not relevant to any determination about access to information:
  • the reasons that access is being sought ( NTIA s 17, FOIA s 11)
  • the possibility that disclosure may result in embarrassment to, or a lack of confidence in, the Government or a public sector organisation ( NTIA s 50, FOIA s 11B)
  • the possibility that the applicant may misunderstand the information disclosed ( NTIA s 50, FOIA s 11B).

External Review and Appeal

If you have not received a decision you are happy with 30 days after you make a request for internal review, you can lodge a complaint with an external body to have your matter independently reviewed.

Under the NT scheme, you should make this complaint to the NT Information Commissioner under NTIA s 103.

Under the Commonwealth scheme, you can apply to the Office of the Australian Information Commissioner ('OAIC') for an 'IC review' under FOIA Part VII. The review process and relevant forms are outlined on the OAIC's website.

Time Limits

  • you are seeking information from an NT organisation: You have 90 days to make a complaint under the NTIA to the Commissioner if the organisation has refused access to the information you requested on internal review.
  • you are objecting to an NT organisation providing your information to someone under the NTIA: You have 30 days to make a complaint under the NTIA if the organisation has decided to release information about you to an applicant.
  • you are seeking information from a Commonwealth organisation: You have 60 days under the FOIA to make a complaint if the organisation has refused access to the information you requested on internal review.
  • you are objecting to a Commonwealth organisation providing your information to someone under the FOIA: You have 30 days to make a complaint under the FOIA if the organisation has decided to release information about you to an applicant.
  • the Australian Information Commissioner refers your matter to the AAT: If the Information Commissioner for the FOIA decides that your matter is better reviewed by the Administrative Appeals Tribunal ('AAT') (a decision under s 54W(b)), you have 28 days from the day you receive notice of the Information Commissioner's decision to apply to the AAT to consider your matter.

Fees

There are currently no fees for making an FOI complaint in either jurisdiction.

Complaint to the Ombudsman

If you are unhappy the way you were treated by a government department when they were processing your application under the FOIA (for example, that there was poor communication or unnecessary delays), you can complain to the Commonwealth Ombudsman.

Complaining About the Information Commissioner's Decision

NT Scheme

With respect to complaints lodged before May 2016, the Information Commissioner will conduct investigations, mediations, and hearings in order to resolve the matter. Decision made by the Information Commissioner in relation to these matters can be appealed to the Supreme Court, but only on a question of law.

Complaints lodged in May 2016 or later will be subject to legislative amendments which change this process. The Information Commissioner will have new powers to conduct more thorough investigations, including the ability to require persons to provide documents and sworn evidence at the investigation stage. The Information Commissioner will also have more flexibility as to when mediation is conducted in the complaints process. However, the Information Commissioner will no longer hold hearings. Instead, if the Information Commissioner judges that there is sufficient evidence to warrant a hearing, and mediation has been conducted, you have 28 days to apply to the Information Commissioner to have your matter referred to the Northern Territory Civil and Administrative Tribunal (NTCAT). A report of the Information Commissioner's investigation and relevant evidence is provided to the NTCAT and the parties.

Commonwealth Scheme

If the Information Commissioner decides that your matter is better reviewed by the Administrative Appeals Tribunal ('AAT') (a decision under s 54W(b)), you have 28 days from the day you receive notice of the Information Commissioner's decision to apply to the Administrative Appeals Tribunal ('AAT') to consider your matter.

If you are unhappy with the Information Commissioner's decision, you can also apply to the AAT to review that decision. You will need to apply within 28 days of receiving the Information Commissioner's decision.

Waiver of fees and charges

In both jurisdictions, you can apply for the processing and access charges to be reduced or waived ( FOIAs.29(5), NTIA s.156). The relevant considerations under FOIA is if the charge would cause you financial hardship, or if giving access to the document would benefit a substantial section of the public. For a reduction or waiver under the NTIA, you must demonstrate impecuniosity or indigence, or argue that a waiver is justified given the circumstances of the application and the objects of the NTIA. The same provisions under the NTIA allow you to argue that the application fee should be waived.

Third Parties

When an FOI application is made for information that may interfere with the privacy of an individual or disadvantage a business, the government will usually be required to consult with that individual or business before making a decision to release the information (FOIA ss27, 27A; NTIA s 30). The FOIA requires that this kind of third party be given a reasonable time to respond, and the NTIA gives the third party 30 days. The government can still choose to release information if a third party objects. However, they must give the third party a chance to appeal to either the AAT (under the FOIA) or the Information Commissioner (under the NTIA). Under the NTIA, Aboriginal communities or groups can be third parties with respect to information about their traditions or sacred sites.

Breach of confidence and defamation

A government organisation can choose to release information under the FOI scheme, even if that would ordinarily constitute a breach of confidence or defamation. You cannot sue the organisation for doing so provided that they acted in good faith ( FOIA s91, NTIA s.151). On the other hand, a document that is received as a result of FOI is still subject to any copyright, defamation, or confidentiality obligations that would ordinarily exist. For example, if you obtain a copy of a commercial DVD through the FOI process, you must still seek the rights from the author if you wish to copy, reproduce or otherwise publish the contents of that DVD.

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