A guide to proposed Freedom of Information reforms in Australia: What they mean for Commonwealth agencies

In relation to consulting foreign entities: 30 working days

In relation to consulting other agencies or ministers: 15 working days

Way in which FOI request may be sent to an agency

Currently, an FOI request may be sent to an agency by delivery,²⁸ by post,²⁹ or to an electronic address (e-mail). ³⁰

The proposed amendment to 15(2A)(c) of the FOI Act updates the electronic communication method by which an FOI request must be sent to an agency to ‘in a manner’ (instead of ‘to an electronic address’) specified by the agency.³¹

Practically, this would give agencies greater flexibility in specifying how they would like to receive electronic FOI requests (e.g. via an online form on the agency’s website, in addition to via email).

Separately, we consider that receiving FOI requests via an online form may assist an agency to comply with its obligation to take reasonable steps to assist a person to make a valid FOI request,³² in that the form may be designed to contain validation rules that require certain fields of the form to be completed before the form may be submitted. For example, the form may require the person to tick a box confirming that the request is an application for the purposes of the FOI Act,³³ and contain compulsory fields requiring the person to give details about how notices may be sent to them (e.g. by requiring the person to provide an email address).³⁴

The proposed insertion of s 15(2AA) would provide that a request is only taken to have been made under s 15 of the FOI Act if the request complies with the requirements in s 15(2) of the FOI Act,³⁵ noting that the Bill proposes to add additional requirements to s 15(2) (see e.g. details about fees above, and ‘Anonymous and pseudonymous requests’ below).

This means that an agency would only have to process requests that comply with the requirements in s 15(2) of the FOI Act (including the payment of any required fee, if the relevant amendments and regulations are passed). The timeframes for acknowledging receipt of the request and providing a decision on the request only start once a request complies with the requirements in s 15(2) of the FOI Act.³⁶

However, an agency would continue to have a duty to take reasonable steps to assist the person to make a request that complies with the requirements in s 15(2) of the FOI Act,³⁷ unless it is a vexatious or frivolous request that the agency refuses to deal with under the proposed new s 15AD³⁸ (see below for further details).

Under the proposed amendments, FOI requests would no longer be able to be made anonymously or under a pseudonym. This change is aimed at preventing vexatious requests and ensuring greater transparency about who is seeking government information. This change may have a significant impact on how agencies manage requests.

The Bill proposes to introduce additional requirements for a valid FOI request, listed at s 15(2). These amendments would require the request to include:

• The full name of the applicant,³⁹ (and if the request is being made on behalf of another person, state that the request is being made on behalf of another person and include the full name of the other person).⁴⁰
• If the applicant is seeking access to a document containing personal information about the applicant or information concerning the business, commercial or financial affairs of the applicant, proof of the applicant’s identity provided in a form and manner specified by the agency.⁴¹
• If the applicant is seeking access on behalf of another person, to a document containing personal information about the other person or information concerning the business, commercial or financial affairs of the other person, proof of the following, provided in a form and manner specified by the agency:
  • Proof of the applicant’s identity
  • Proof of the other person’s identity
  • Proof that the applicant is authorised to access the document on behalf of the other person⁴²

In circumstances where the agency is dealing with a request for access to a document (including a request that does not comply with the requirements of s 15(2)), and the agency:

• Is not satisfied of the identity of the applicant or the person on whose behalf the request was made, or
• Becomes aware that a requested document may contain personal information or information concerning the business, commercial or financial affairs of the applicant or a person on whose behalf the request was made.
• The proposed introduction of s 19 would give the agency the power to give the applicant a written notice, requiring the applicant to provide the applicable proof of identity. ⁴³

If the applicant does not comply with the notice and provide the applicable proof of identity within 14 days after the notice is given, the applicant is taken to have withdrawn the request,⁴⁴ and therefore the agency would not be required to process it.

If the applicant provides the applicable proof of identity within the 14 day timeframe, the number of working days, in the period starting on the day the applicant receives the notice and ending on the day the applicant provides the proof of identity, would be disregarded for the purposes of working out the length of the processing period under s 15(5)(b). ⁴⁵

• The agency to which the request is made would no longer need to conduct any search for the document to confirm that it is not in its possession, if it is apparent from the nature of the document as described in the request that it would not be in the possession of that agency.⁴⁷
• The request could be transferred if the subject-matter of the request (rather than the document) is more closely connected to the functions of another agency than with those of the agency to which the request is made.⁴⁸

The proposed amendment to repeal s 24AA(1) would remove the practical refusal reason where a request does not satisfy the requirement in s 15(2)(b) in relation to the identification of documents.

This practical refusal reason would no longer be required in light of the proposed amendment, which requires an agency to only process requests that comply with the requirements in s 15(2) (described above).

A practical refusal reason would continue to exist where the work involved in processing the request would substantially and unreasonably divert the resources of the agency from its other operations.⁴⁹

Additionally, the Bill introduces a new practical refusal reason – if the work involved in processing the request is likely to exceed the processing cap,⁵⁰ which is the higher of 50 hours or the applicable number of hours prescribed in regulations.⁵¹

In addition to the existing matters set out at s 24AA(2), an agency must have regard to the matters (if any) prescribed by the regulations when determining whether it is likely the total number of hours of work would exceed the processing cap.⁵²

The proposed insertion of a new s 15AD would give an agency the power to refuse to deal with, or to continue to deal with, a request (including a request that does not comply with the requirements in s 15(2)) that is:

(a) Vexatious or frivolous
(b) Harassing, intimidating, or otherwise causing harm (or a reasonable fear of harm) to another person (or likely to have the effect of the preceding matters)
(c) Otherwise an abuse of process⁵³

This is a crucial tool for managing abusive and resource-intensive requests. It empowers agencies to protect their resources and ensures that they can focus on processing legitimate applications.

For the purposes of s 15AD, an agency may treat two or more requests as a single request if the agency is satisfied that the requests:

• Relate to the same document or documents.
• Relate to documents, the subject matter of which is substantially the same.⁵⁴

If the agency makes a decision to refuse to deal with or to continue to deal with the request under s 15AD, the agency must give the applicant notice in writing of the decision, as soon as practicable.⁵⁵ Notably, the 30 day timeframe for making decisions under s 15(5)(b) (and the 14 day timeframe for acknowledging requests under s 15(5)(a)) would not apply to decisions under s 15AD.⁵⁶

However, the agency does not have to give notice of a decision under s 15AD if the request does not comply with s 15(2)(a), (aa) and (c) (i.e., that the request is written, states that it is a request for the purposes of the FOI Act and gives details of how notices may be sent to the applicant).⁵⁷

The notice of the decision must:

• Specify one or more of the matters mentioned at s 15AD(1) (summarised at paragraphs (a)-(c) above) as reasons for the decision).
• Include information about how to make an application for IC review.⁵⁸

An application for IC review:

• May be made by, or on behalf of, the person who made the request to which the decision relates or the person on whose behalf the request was made.⁵⁹
• Must be made within 30 days after the day notice of the decision was given under s 15AD(2).⁶⁰

The Bill also proposes amendments to s 89L, providing further clarification of the scope of the grounds on which the IC may make a vexatious applicant declaration.⁶¹

Edited copy of a document

The proposed introduction of s 22(1A) would extend the application of s 22 to the deletion of ‘employee identifying information’, in circumstances where:

• The employee identifying information is not about the applicant or a person on whose behalf the request was made.
• One of the following applies:
• The request does not specify that the applicant is seeking access to employee identifying information.
• The request specifies that the applicant is not seeking access to employee identifying information.
• The request specifies that the applicant is seeking access to employee identifying information but the employee identifying information is not already publicly known to be associated with the subject matter of the document and/or disclosing the employee identifying information is not necessary to meaningfully increase scrutiny, discussion or comment on Government processes or activities.⁶²

‘Employee identifying information’ would capture ‘information that could be used to identify or directly contact an officer or employee, or former officer or employee, of an agency […] (an employee) in their capacity as an officer or employee of an agency’,⁶³ and would include an employee’s name, email address, telephone number, identifying number and passwords or user name details.⁶⁴

However, the names of SES-level employees and their agency email addresses, and telephone numbers would not be captured by the definition of ‘employee identifying information’. ⁶⁵

The practical implication of these proposed amendments would be the redaction of employee identifying information as a matter of course while processing FOI requests, where the criteria set out in the proposed s 22(1A) and (1B) are satisfied. In circumstances where the criteria are not met, existing exemptions may apply.

The proposed s 23A would provide agencies with the power to refuse to give access to a document in accordance with an FOI request if:

• It is apparent from the description in the FOI request that the document would be an exempt document for the purposes of Part IV (i.e. that the document is an exempt document under Division 2; or the document is conditionally exempt under Division 3, and access to the document would, on balance, be contrary to the public interest).
• The obligation to provide an edited copy of the document under s 22 does not arise, or the applicant does not wish to have access to an edited copy of the document.⁶⁶

A decision to refuse access to a document under s 23A would constitute an access refusal decision,⁶⁷ and therefore be subject to internal review.

The proposed amendments to s 34 arguably broaden the scope of the cabinet documents exemption, in the following ways:

• The proposed amendment to s 34(1)(a)⁶⁸ requires that the document ‘has been prepared by a Minister, on a Minister’s behalf or by an agency’ rather than requiring that the document ‘has been submitted to the Cabinet for its consideration, or is or was proposed by a Minister to be so submitted’ and only requires that submission for consideration by the Cabinet be a ‘substantial purpose’ rather than the ‘dominant purpose’.
• The proposed amendment to s 34(1)(c),⁶⁹ similarly only requires that a ‘substantial purpose’ for the preparation of the document was to brief a Minister in relation to issues to be considered by the Cabinet, rather than for the ‘dominant purpose’ of briefing a Minister on a document to which paragraph (a) applies (as currently drafted)
• The proposed amendment to s 34(2) extends the scope of the exemption to documents that summarise, describe or refer to the contents of an exempt cabinet document.⁷⁰
• The proposed addition of s 34(7) clarifies that the presence or absence of any security marking or feature identifying the document as a Cabinet document is not determinative.⁷¹
• The proposed addition of s 34(8) provides the definition that ‘consider, in relation to the Cabinet, includes discuss, deliberate, note and decide’.⁷²
• ‘Cabinet deliberation or decision’ is proposed to be substituted with ‘consideration of the Cabinet’ in ss 34(3)⁷³ and 34(6)(a).⁷⁴

The proposed addition of s 11B(3A) sets out factors that weigh against giving access to documents that are conditionally exempt under s 47C (deliberative processes).

These factors are whether giving access to the document would, or could reasonably be expected to:

(a) prejudice the frank or timely discussion of matters or exchange of opinions between participants in deliberative processes of government for the purposes of consultation or deliberation in the course of, or for the purposes of, those processes.
(b) prejudice the frank or timely provision of advice to or by an agency or Minister, or the consideration of that advice after it is provided.
(c) prejudice the orderly and effective conduct of a government decision-making process. ⁷⁵

• Notice of request consultation process in relation to intention to refuse access to a document
• Notice of decision relating to refusal to grant access to a document or deferring provision of access to a document
• Notice of decision relating to rejection of applicant’s contention about a charge

The proposed amendments remove the requirement for the name of the agency contact person / decision-maker to be included in the notices (listed in the column to the left) given under ss 24AB, 26 and 29(9) of the FOI Act.⁷⁶

The practical impact of these proposed amendments, in conjunction with the proposed amendment to extend the application of s 22 to the deletion of ‘employee identifying information’, may be to increase the psychosocial safety of agency employees, noting that some FOI applicants publish FOI decisions on the internet.

Indeed, the Explanatory Memorandum to the Bill recognises:

‘in the digital era, publication of employee identifying information, by the agency or applicant, in response to FOI requests may increase employees being subject to abuse, harassment, doxxing, confrontation in their personal environments, and being targeted for grooming by malicious groups seeking to access information or systems or for engagement in fraudulent behaviour.’⁷⁷

The proposed amendment to s 15AC(4) clarifies that where a request is deemed refused, the agency must continue to make an actual decision on the request, and may apply, in writing, to the IC for further time to deal with the request.⁷⁹

Under the proposed s 29(10), if an applicant seeks IC review where an agency has made an actual decision out of time, the IC review would nonetheless be of the actual decision and not of the deemed decision.⁸⁰ An applicant would not be able to seek internal review of an out of time actual decision. ⁸¹

If an applicant seeks IC review of a deemed refusal decision, the agency would no longer be able to vary (or set aside and substitute) a more favourable decision under s 55G.⁸² This is because the obligation on the agency to make an actual decision under the news 15AC(4) would continue to apply.

Agencies should be aware that there are some proposed amendments that would provide for:

• IC review applications to:
  • ‘be in the form specified by the Information Commissioner (if any)’.⁸³
  • be sent to the IC ‘in a manner specified by the Information Commissioner’. ⁸⁴
• complaints to the IC about actions taken by an agency to:
  • specify how notices may be sent to the complainant (e.g., by providing an electronic address).
  • ‘be in the form specified by the Information Commissioner (if any)’.
  • ‘be sent to the Information Commissioner in a manner specified by the Information Commissioner’.⁸⁵

The proposed s 54V(2) provides that the IC may make preliminary inquiries of the agency as to whether an application for internal review has already been made, and if so, whether the decision on internal review has been made or is taken to have been made. ⁸⁶

Under the proposed s 54W(a)(ia), the IC may exercise their discretion not to undertake an IC review if the IC is satisfied that an application for internal review has been made but a decision on internal review has not yet been made or has not yet taken to have been made. ⁸⁷

The practical effect of these amendments will be to assist with avoiding concurrent internal and IC reviews.

The proposed addition of ‘Note 1’ to s 53A makes clear that a decision refusing to give access to a document because a practical refusal reason exists is a decision refusing to give access to a document for the purposes of s 53A(a).⁸⁸

Under the proposed s 55K(1A), the IC would have additional decision-making powers (in addition to the existing power under s 55K(1)) in relation to agency decisions involving a practical refusal reason, to:

• Set aside the decision that a practical refusal reason exists;
• Substitute a decision that a practical refusal reason does not exist;
• Remit the request to the agency to reconsider the request in accordance with any orders or directions of the IC.⁸⁹

If the IC decides to remit a request to an agency under the proposed s 55K(1A), and the agency does not apply for Administrative Review Tribunal review of the IC’s decision within the relevant timeframe specified in s 57A, then the agency must reconsider the request, in accordance with any orders or directions of the IC, as if:

• It is a new request made under s 15.
• Notice has been given to the applicant under s 15(5)(a) in relation to receipt of the request.
• The 30 working day period for making a decision under s 15(5)(b) starts on the day after the time for making an application to the Tribunal under s 57A for review of the review decision has ended.
• S 24 (refusal of access to a document because a practical refusal reason exists) does not apply.

Once a decision is made by an agency upon remittal from the IC, it cannot be internally reviewed,⁹⁰ but the applicant, or any affected third party, may make an application for IC review⁹¹.

The proposed s 55GA will allow the IC to remit a matter to the agency at any time during the IC review if the IC is satisfied that it is more efficient and effective for the agency to deal with the matter, and the agency agrees to reconsider the matter in accordance with any orders or directions specified by the IC.⁹²

Once a matter is remitted to the agency, the agency must reconsider the matter in accordance with any orders or directions of the IC, and take any other required action (including affirming, varying, or setting aside and substituting the IC reviewable decision), within the timeframe specified by the IC (or as extended by the IC upon application from the agency).⁹³

The IC review resumes once the agency has reconsidered the matter in accordance with any orders or directions of the IC, or once the timeframe specified by the IC has lapsed.⁹⁴

If the agency varies or sets aside and substitutes the IC reviewable decision, the IC must deal with the IC review application as if it were an IC review application for the review of the varied or substituted decision.⁹⁵

The proposed amendments to s 55F would result in the following changes to the applicable process for when parties reach agreement during an IC review:

• The IC would no longer be required to be satisfied that a decision in the terms of an agreement, or consistent with those terms, would be within the power of the IC.⁹⁶
• An agreement may only be made if the decision is an access refusal decision and there are no affected third parties.⁹⁷
• If an agreement is reached in relation to the whole IC review application, then the IC review is taken to be completed and an IC decision under s 55K is not required.⁹⁸
• If an agreement is reached in relation to part of the IC review application, then the IC review is taken to be completed to the extent that it relates to that part, and an IC decision under s 55K is not required in relation to that part.⁹⁹

The proposed s 54R(1A) prevents an applicant from withdrawing an IC review application to the extent that it has been dealt with by agreement. ¹⁰⁰

The proposed amendments would:

• Require the complainant to include, in a complaint, information that is reasonably necessary to enable the IC to identify the action and understand the nature of the complaint.¹⁰⁴
• Allow the IC to exercise discretion not to investigate a complaint if the IC is satisfied:
  • There is an ongoing review into the matter (internal review within the agency, IC review, or court or tribunal review).
  • A review into the matter (internal review within the agency, IC review, or court or tribunal review) was commenced but the complainant discontinued the review in circumstances where it was not reasonable for the complainant to do so.¹⁰⁵
  • The complaint raises issues that are the same or substantially similar to issues in another complaint that the agency has dealt, or is dealing adequately with, or the agency has not yet had an adequate opportunity to deal with.¹⁰⁶
  • That investigating, or continuing to investigate, the complaint is not warranted having regard to all the circumstances.¹⁰⁷
  • That the complainant has not responded to a request for information, in relation to the complaint, within the period specified by the IC.¹⁰⁸

In response to the decision of the Full Court of the Federal Court in Attorney-General (Cth) v Patrick [2024] FCFAC 126,¹⁰⁹ the Bill proposes new provisions to provide clarity in circumstances where an FOI request is made to a Minister for an official document of the Minister that relates to the affairs of an agency for which the Minister is the responsible Minister (or a department administered by the Minister), and after the FOI request is made, the Minister ceases to hold the relevant office.¹¹⁰

The Bill proposes amendments to the definition of ‘official document of a Minister’ at s 4(1), to clarify that the ‘the official documents of a Minister are limited to documents that relate to the affairs of an agency for which the Minister is the responsible Minister or of a Department of State administered by the Minister’.¹¹¹

A Minister ‘ceases to hold the relevant office’ for a request if the Minister has not transferred the FOI request under s 16 before they cease to be the responsible Minister for the agency (or to administer the department).¹¹²

In this regard, an outgoing Minister may forward an active request to another Minister or an agency, if the Minister reasonably believes that they will cease to hold the relevant office for a request while the request is active. ¹¹³

If the outgoing Minister does not forward a request, and they cease to hold the relevant office for that request while the request is active, the request would be taken to have been forwarded to the agency or department whose functions most closely relate to the subject of the request, at the time the outgoing Minister ceases to hold the relevant office.¹¹⁴

Practically, for agencies receiving forwarded requests:

• The request is taken to have been made to the agency.
• Other than for the purposes of Part VIIB (Investigations and complaints), anything done in relation to the request by the outgoing Minister is taken to have been done by the agency.
• A decision in respect of the request cannot be made on behalf of the agency by the responsible Minister (despite s 23(1)).
• Any requirements for consultation with the outgoing Minister under s 27A, in relation to documents affecting personal privacy would continue to apply.¹¹⁵

When processing forwarded FOI requests, agencies would only be required to conduct searches of their own documents, and would not be required to search for an official document of a Minister.¹¹⁶

If these amendments pass, agencies would do well to ensure that their communication processes and protocols with their Minister are updated so that FOI requests can be forwarded efficiently when an outgoing Minister reasonably believes that they will cease to hold the relevant office for a request while the request is active. This would include ensuring that FOI requests that are not actively forwarded by the Minister (but are taken to be forwarded at the time the outgoing Minister ceases to hold the relevant office) are not missed and are promptly processed within the requisite timeframes.