Freedom of Information Request: How Can I Object?

In Australia, we have the national system for Freedom of Information (“FOI”). However, we also have a state-based system for requests as well. The critical aspect of a freedom of information request is to respond before the deadline.

Type of Party

One factor is whether it involves a third party or the respondent. For example, someone may request information regarding a contract with a government department. In that case, a private company would likely be a third party. Hence, any emails, documents or dealings with the department may be disclosed.

Scope of Freedom of Information Request

The first thing to look at is the scope of the request. What documents are they requesting? What is the timeframe of those documents? The purpose of the scope is to only capture what is relevant and to prevent a fishing exercise.

Competing Factors

Pro Disclosure

The Government Information (Public Access) Act 2009 (NSW) (“The Act”) tends to favour disclosure. The Act sets out a non-exhaustive list of examples for when disclosure should take place. One example is to promote open discussion of public affairs. The other is to reveal misconduct, negligence or improper or unlawful conduct.

Contra Disclosure

In contrast to the above, the Act provides a limited list of valid reasons against disclosure. They are grouped under seven main headings. Examples of relevant reasons include revealing an individual’s personal information.  Likewise, disclosure may prejudice the business, professional or financial interests. Therefore, private businesses could appeal to business interests. Depending upon the scenario it may be able to prevent disclosure if necessary. Alternatively, the party whose documents are being disclosed may request partial disclosure. In this case, they would request the government department redact the businesses details. For example, they could redact names, email addresses and phone numbers.  If a party is going to object they will need to provide notice to the department stating why they object.

Right of Review for Freedom of Information Request

Despite a party’s best efforts, the department may not accept their objection. In the event that the department decides to release the information, the party may request an internal review. This has a 20-day deadline from the department’s decision. If that does not succeed they may apply for external review by the Information Commission. If that also does not succeed they may apply to the NSW Civil & Administrative Tribunal.