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6 Freedom of Information Act 1982
The Freedom of Information Act 1982 came into operation on 1 December 1982 with the object of "opening up" government operations. As far as possible, the Act extends the right of the Australian community to gain access to information in documentary form in the possession of the Commonwealth. Access is limited to the extent necessary to preserve essential public interest and the privacy and business affairs of those about whom DSH collects and holds information.
For many years DSH has provided clients with access to information on their personal files; this existing practice will continue. However, this practice is supplemented by the FOI Act which gives a statutory right to applicants to seek access to, and copies of, documents on their personal files. Clients also have a right to seek amendment of their personal records. The non-client public has a right to seek access to documents of DSH. Previously, a member of the public could be asked to provide reasons for seeking access to a document. Reasons for seeking access cannot be asked with FOI requests and the onus is on DSH (through the Department) to decide to approve access or to deny a request.
The FOI Act divides documents into two groups:
- those documents to be declared and made available to the public for inspection and purchase;
- those documents to which access may be granted following a written request.
The first group of documents is defined by section 9 of the FOI Act. This group includes manuals or other documents containing interpretations, rules, guidelines, practices or precedents, particulars of a scheme (including a scheme's administration or enforcement or procedures to be followed in investigating breaches or possible breaches of such a scheme's provisions) being documents used by staff to make decisions affecting the public eg. on the rights, privileges, benefits, obligations and penalties to which the public may be entitled or subject. These documents are to be identified, available for public inspection and purchase without written request, and a listing of them to be available at Information Access Offices of Australian Archives.
Section 8 of the FOI Act requires the Department to publish, annually in its Annual Report, a statement of its structure, functions, decision-making powers, categories of documents held and arrangements for public access.
The second group of documents (ie. the remainder of documents in the possession of DSH) is available only on receipt of a written request from an applicant. This group of documents is subject to the provisions of the legislation covering access, exemptions, transfer, deferment and appeal.
All members of the public have a right of access (subject to exemptions) to DSH documents and to official documents of the Minister. The onus is now on DSH (through the Department) to justify its refusal of access to a document instead of the person seeking access to a document having to justify access. There is no requirement under FOI for a person seeking access to a document to specify his or her interest in the matter (ie. why he or she wants the document).
A request for access under FOI must be in writing but there is no need for a special form to be used, nor is there a need to specify that access is sought under the FOI Act. The request should specify what is required (ie. a document or documents relating to a specified subject) and provide sufficient information to enable the Department to identify the documents. Requests must be accompanied by the appropriate application fee , however, the Act provides for a discretion to remit all or part of the fee for any reason, including financial hardship of the applicant or where disclosure is in the public interest.
The FOI Act does not give a right of access to the public to:
- records which are covered by the Archives Act, ie. records over 30 years old will be available for public access (unless exempt) under that legislation, not under the FOI Act;
- documents which are open to public access as part of a public register, other legislation, libraries, etc; or
- documents which are available for purchase by the public (eg. via the AGPS or the Department).
Generally speaking, access to documents held by DSH, the Department or Minister prior to 1 December 1977, if still held, are also not available for access by the public, unless the documents contain personal information about the applicant. This is not a rigid principle, however, as documents originating before FOI, which relate to the understanding of a document lawfully accessed under FOI, may be released.
The FOI Act provides a minimum standard for granting access and should not be used to restrict or prohibit practices which DSH has developed over the years for releasing information to the public.
An officer's responsibilities under FOI legislation are generally dependent on the extent of his/her involvement in FOI matters. When access to a document is sought by a member of the public, an officer is obliged to ensure the request is satisfied to the best of his or her ability, in accordance with the FOI Act. All requests for access must be referred to the FOI Officer.
Officers should assist the public, wherever possible, to ensure its needs are met. This may require an investigation of documents held to ascertain which are required by the person concerned. Where necessary an officer may need to assist the applicant with this identification.
An officer also has a responsibility to the Department when dealing with the public on an FOI matter. Officers need to ensure that they are aware of the Department's responsibilities under the FOI Act and that they represent the Department in a proper manner.
When access to a document is required to be given under FOI legislation and access is given in the bona fide belief that access is required under the Act, an officer has protection under the Act against any legal proceedings arising from disclosure of the document. Such protection is not available to an officer who gives access if he/she is not authorised to do so.