Freedom of Information (FOI)
Everyone in Australia has a right to access government documents, with some exceptions, under the Freedom of Information Act 1982 (Cth). This includes:
- a person’s own documents, for example visa applications
- information about administrative decision-making, service delivery and policy-making.
What you cannot get
Under the FOI laws, some documents do not have to be provided. Relevantly, these include documents that affect national security, defence or international relations, Cabinet documents, or documents that disclose commercially valuable information. However, an agency or minister may decide to disclose these documents.
The government can also refuse to disclose certain kinds of information if it is against the public interest. They must balance factors set out in the FOI Act, but cannot consider any embarrassment to or loss of confidence in the government or misunderstanding.
Some agencies do not have to produce documents. These are mainly intelligence agencies or organisations, and the Auditor-General.
What you can access under FOI (Office of the Australian Information Commissioner)
How to access information (Office of the Australian Information Commissioner)
Freedom of information (Department of Home Affairs)
You may be able to get personal information simply by asking the responsible Department.
Government departments and agencies are required to publish a wide range of information on their websites. This includes general information about the department or agency, operational information, annual reports, budget statements, consultation papers, contracts and tenders, and corporate policies.
Governments also publish a wide range of other material.
Most of the Department of Home Affairs’ policies are published on LEGENDCom. You can access this if you have an ImmiAccount, or through subscribing to the database. The database can be accessed for free at the National Library of Australia, State libraries, or through publicly funded universities. The Department often refuses applications for freedom of information if the material is published on LEGENDCom.
Past freedom of information requests
If a government agency has disclosed information after an FOI request, they must publish this information on a FOI disclosure log on their website.
The website Right to Know also publishes information that has been disclosed to others making an FOI request, if the request is made through the website. This database is searchable, and you can filter requests, search by keywords and follow certain departments or agencies.
This website is also helpful because you can see the kinds of requests that are unsuccessful, and the reasons why they are unsuccessful, to help you make a better freedom of information request.
How to make a request
Under the FOI Act, all you need to do is ask for the information in writing, provide a physical or electronic address, give enough information for the government to identify the documents, and say you are asking under the FOI Act.
It is free to make an application, and to get your own personal information. However, for other kinds of information, you may have to pay for the costs of providing the documents. You will be told how much you are charged before you are charged. The government may also choose not to charge you in cases of hardship, or if access is in the general public interest or the interest of a substantial section of the public.
You can ask for information from the Department of Home Affairs using an online form, or by email or to a mailing address.
You can also request information from an agency using the website Right to Know. If you do this, the response will be published to their website for the public to find and read.
Make a request using Right to Know
A Freedom of Information request should be:
- acknowledged within 14 calendar days, and
- decided within 30 days, with reasons, or
- decided within 60 days if someone else has to be consulted, or
- decided within a longer period if you agree to an extension of time, or if the government applies to the Australian Information Commissioner for an extension of time in exceptional circumstances.
If the government does not meet these deadlines, you can apply for review of the decision to the Australian Information Commissioner.
There have been several inquiries into how the Department of Home Affairs (and formerly the Department of Immigration) deals with freedom of information. The Office of the Australian Information Commissioner reviewed more decisions by that Department than any other in 2017-2018, although the Department also receives very many requests.
Review of decision
If you do not get the documents, do not get a decision within the time required, or are asked to pay a charge, you can:
- ask for another officer of the government department or agency to review the decision internally (‘internal review’), or
- apply for review by the Office of the Australian Information Commissioner within 60 days.
Both of these choices are free. The Office of the Australian Information Commissioner takes an average of 6 months to complete a review and in 2017-2018 it completed 84% of reviews within 12 months.
The Office of the Australian Information Commissioner, however, is facing delays in its work because it does not have enough money or staff.
The use of non-judicial accountability mechanisms by the refugee sector
Apply for internal review (Department of Home Affairs)
Apply for review of a decision (Office of the Australian Information Commissioner)
You can also complain to the Office of the Australian Information Commissioner if you have concerns about how the government has handled your request, although first you should complain to the government department or agency.
You can complain to the Office of the Australian Information Commissioner by filling in an online form. There is no cost. The complaint should state the department or agency it concerns and all relevant information, and make clear what the issues are and what you want.
This review can result in an own motion investigation (OMI), which will look at both a single agency decision or action, or a system problem. However, the Commissioner cannot investigate action taken by a minister in dealing with FOI matters.
If you are not happy with a decision by the Office of the Australian Information Commissioner, you can appeal the decision within 28 days to the Administrative Appeals Tribunal.