Freedom of information laws allow access by the general public to data held by national governments.
The Freedom of Information Act 1982 (FOI Act) gives you a general right of access to information held by us and other Commonwealth agencies (departments and authorities).
Under the FOI Act, you have a legal right (subject to some exceptions) to see documents we hold and get copies of those documents. You can also see most manuals, rules and guidelines that we use to make decisions about the legislation we administer such as the Migration Act 1958 and the Australian Citizenship Act 2004.
We might refuse to give you access to documents because they are exempt documents – for example, where disclosure could reasonably be expected to prejudice an ongoing investigation or if it contains information about another individual.
Requests for records in relation to the OAIC notice to all persons in detention on 31 December 2014
If you are seeking access to your personal records in order to prepare a response to the OAIC’s notice to all persons in immigration detention on 31 January 2014 send an email to [email protected], with the type of personal records you are seeking (for example, your medical records from 2014 or later), your name and date of birth.
You are encouraged to request any evidence you need from the Department as soon as possible, because the Department may require 3-4 weeks to process your request.
The Department can only provide you with personal records that it holds for you. If you are seeking records in relation to services provided while you were in community detention, you will need to approach the relevant service provider directly.
Making a freedom of information request
If you make a request under the Freedom of Information Act 1982 (FOI Act) for access to documents, it must:
- be in writing
- provide a physical or electronic address where we can send our decision
- provide enough information for us to identify the documents
- state that the request is under the FOI Act.
To make a valid request, you will need to complete Form 424A Request for access to documents of information.
If you are requesting your personal information, include photographic identification with your request to assist us to protect your privacy.
After you lodge your application, we will acknowledge it within 14 calendar days. We are required to give you our decision about your request and the reasons for that decision within 30 days of receipt of your application.
If we have to consult with anyone else, we have a further 30 days to tell you of our decision – for example, if you ask for a document which contains information about a third party.
If for any other reason we are likely to need more than 30 days to complete your request, we will contact you to arrange an extension of time for processing of your request in line with the requirements under the FOI Act. We might also apply to the Australian Information Commissioner for an extension of the processing time where exceptional circumstances would prevent us from processing your request in 30 days. You will be informed in writing if the processing time has been extended.
If we do not meet these 30-day time limits, you can apply to the Australian Information Commissioner to review our decision on the basis that we are deemed to have refused your request.
The FOI Act imposes an obligation on an agency to consult with third parties before a decision on the release of a document is made. We will be required to consult a third party where the document contains:
- information that is likely to affect Commonwealth-State relations
- a person’s business or professional affairs of the business, the commercial or financial affairs of an organisation or undertaking where the disclosure of that information might be unreasonable
- a third party’s personal information where the disclosure of their information might be unreasonable.
You will be notified if consultation is required under the FOI Act and the date on which a decision on your request is due.
Third parties do not have the power to reject a right of access under the FOI Act. Their comments on the release of the document will be taken into account by our decision-maker when deciding whether or not to provide you with access to the documents.
A third party can seek internal review or review by the Information Commissioner of the decision to release the document.
Where a third party has objected to the release of documents and our decision-maker has decided to grant access, those documents cannot be provided to you until the third party right of appeal period has expired. We will keep you informed of these timeframes.
Certain documents might be exempt from disclosure if the release of those documents could undermine the functions of government or damage third party or public interests.
The exemptions are contained in Part IV of the FOI Act. Categories of documents which might be exempt from disclosure include (but are not limited to) documents:
- affecting national security, defence or international relations
- cabinet documents
- affecting the enforcement of law and protection of public safety
- to which secrecy provisions or enactments apply
- that are legally privileged
- containing material obtained in confidence
- disclosure of which would be contempt of Court.
Categories of documents which might be conditionally exempt include (but are not limited to) those:
- relating to Commonwealth-State relations
- in the nature of, or relating to, deliberative processes
- relating to financial or property interests of the Commonwealth
- concerning certain operations of an agency
- containing personal information
- that are commercially sensitive relating to business affairs and research.
If a document is a conditionally exempt document, access to the document is required to be given, unless it would be contrary to the public interest.
How access to information is provided
Access to information under the FOI Act is granted as follows:
- a reasonable opportunity to inspect the document
- provision of a copy of a document
- provision of a means to view a film, videotape or sound recording
- provision of a transcript of a sound recording or of shorthand notes.
Why you might be refused access
We might refuse to give you access to documents under the FOI Act because they are exempt documents. Exempt documents include those where disclosure of the documents or the information in them:
- could reasonably be expected to prejudice an investigation
- could reasonably be expected to prejudice the proper administration of the law or the proper efficient conduct of our operations
- would involve the unreasonable disclosure of personal information of another person or constitute a breach in confidence
- is prohibited under other legislation — for example, under the Migration Act secrecy provisions
- is subject to legal professional privilege
- is contrary to the public interest, and they are internal working documents.
We have established procedures to help us make fair and consistent decisions about requests for information under the FOI Act. If you are refused access to documents, you can have the decision reviewed.
Sometimes we might give you a document with the exempt material deleted. You will be provided with the reasons for the exemption and your review rights.
We might decide to impose charges under the FOI Act for the time taken to process your application. This includes charging for the time taken to search and retrieve the documents relevant to your request, the time taken to make a decision on your request and the costs associated with photocopying and postage.
No charge is payable on a document which contains your own personal information (but could be payable if your request extends to documents which contain information other than your personal information).
Under the FOI Act and regulations there is no charge for:
- making an application for access to a document
- making an application for amendment or annotation or a personal record
- making an application for internal review of a decision
- making an application for review by the Information Commissioner
- making a complaint to the Information Commissioner
- providing access to personal information
- providing access outside the statutory processing period unless that period has been extended.
Fees and charges are set by the Freedom of Information (Charges) Regulations 1982. Currently these include:
|Search and retrieval: time we spend searching for or retrieving a document
||Australian dollar (AUD) $15.00 per hour
|Decision making: time we spend in deciding to grant or refuse a request, including examining documents, consulting with other parties, and making deletions
||First five hours: Nil
Subsequent hours: AUD $20 per hour
|Transcript: preparing a transcript from a sound recording, shorthand or similar medium
||AUD $4.40 per page of transcript
||AUD $0.10 per page
|Inspection: supervision by an agency officer of your inspection of documents or hearing or viewing an audio or visual recording at our premises
||AUD $6.25 per half hour (or part thereof)
|Delivery: sending or delivering a copy of a document at your request
||Cost of postage or delivery
If the request for documents is broad — for example, a number of documents are requested — the fees for processing the request can be high.
You will be notified in writing if we decide to impose charges. A deposit might be required if the amount of the charges is over $25. If a deposit is required, the statutory time limit is stopped until your deposit is received. If we decide to impose a charge, you can contend that the charge has been wrongly assessed, or should be reduced or not imposed.
We will notify you of the final amount of charges once a decision has been made on your request. Payment of the charges is required before you are given access to documents.
The FOI Act gives you the right to seek an internal review or review by the Information Commissioner of the decision to impose a charge.
Request for waiver of fees and charges imposed by us
We have the discretion to consider not imposing charges associated with processing your request for any reason, including, but not limited to:
- the payment of the charge or a part of the charge would cause you financial hardship
- the giving of access is in the general public interest or in the interest of a substantial section of the public.
If you believe that any of the relevant criteria has been met or that the overall circumstances justify not imposing the charge, you should provide adequate supporting evidence to us clearly demonstrating this fact.
If we do not hear from you within 30 days from the date you received the estimate of charges, your request will be treated as withdrawn.
If we exceed the processing time (processing time is taken to include any extensions of time under the FOI Act) we cannot charge for access and any charges collected for that request will be refunded.
An applicant who is a journalist or is acting on behalf of a non-profit organisation cannot be charged for the first five hours of processing.
If charges are imposed and you want to dispute the charges, you should contact us as soon as possible with reasons why you consider the charges should not be paid.
A decision to impose a charge and notification to you must be made within 30 days of the receipt of your request.
Review of decisions
The FOI Act gives you the right to seek an internal review of the decision refusing to grant, or a decision granting partial access to documents in accordance with your request.
The internal review will be conducted by a senior officer who had no involvement in the initial decision.
No particular form is required for the request for internal review, but it would help the decision-maker if you included in your application the ground on which you consider the decision should be reviewed.
You can also seek internal review or review by the Office of the Australian Information Commissioner (OAIC) of the decision to impose a charge.
Applications for internal review should be addressed to:
Freedom of Information Section
Department of Home Affairs
PO Box 25
Belconnen ACT 2616
Email: [email protected]
An application can be made to the Information Commissioner for a review of the following decisions:
- a decision to refuse access to a document
- a decision made by us on internal review to refuse access to a document
- a decision to refuse a further period for making an application for internal review of a decision to refuse access to a document.
You have 60 days following the date of a decision to lodge a review with the Information Commissioner. You can also appeal to the Information Commissioner if you have not been notified of the decision on your request for access, or of the decision on your request for review, within the required time. An application to the Information Commissioner must be in writing and must give details of how notices might be sent to you (for example, by providing an electronic address to which notices could be sent by electronic communication) and include a copy of the decision given by us.
Your application could contain particulars of the basis on which the review is sought.
The application for a review by the Information Commissioner must be sent to the Information Commissioner. Details of how to request a review can be found on theOffice of the Australian Information Commissioner website.
How to make a complaint
You can complain to the Australian Information Commissioner if you have concerns about how we have handled your request under the FOI Act. Information about how to submit a complaint is available on the Office of the Australian Information Commissioner website.
Administrative Appeals Tribunal (AAT) Review
If you are still dissatisfied after a review by the Information Commissioner, you can appeal to the AAT. Appeals to the AAT must be lodged in writing within 28 days of being notified of the Information Commissioner’s review decision.
Appeals must be accompanied by payment of a lodgment fee. That fee might be refunded to you in certain circumstances.
Freedom of Information Disclosure Logs
The Freedom of Information Act 1982 (FOI Act) requires agencies to publish information in a disclosure log within 10 working days after the freedom of information (FOI) applicant was ‘given access’ to a document.