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Freedom of Information (FOI) laws in Australia allow people to access certain documents held by government agencies and ministers. There are a number of reasons why a person might make an application under the FOI legislation to access information, one of the primary reasons being to allow a person to view the documents and information that was used by a government agency to make a decision.

There are however a number of exemptions regarding the information that can be obtained under FOI legislation, including documents affecting national security, documents that if released might be contrary to the public interest and documents that would infringe the privacy of individuals. There also exists a discretion to refuse access to documents that might otherwise not be exempt, for example where to give access would substantially or unreasonably divert the resources of the agency.

An application can be made to access documents pursuant to either the state or commonwealth act, depending on which agency you are seeking information from. The application is made by writing a letter to the relevant government agency setting out the information you want in sufficient detail to enable identification of the documents sought. In most circumstances the agency will have an FOI officer to which you should address the letter and a fee will be payable.

A decision to refuse access to the documents must be given in writing with the reasons for refusal set out.

If your request is refused you can seek a review of that decision. In Victoria the first port of call is usually to make an application to the Freedom of Information Commissioner for a review within 28 days of the refusal. If you are still unhappy with the decision an application can be made to the Victorian Civil and Administrative Appeals Tribunal (VCAT). VCAT will conduct a review of the decision by way of a hearing where witnesses might be called and cross-examined.

Under the commonwealth legislation you can seek an internal review of the decision (a review by the agency itself) or apply to the Australian Information Commissioner for a review. The Commissioner may hold a hearing as part of his review. If you are unhappy with the outcome of the Commissioner’s review you can appeal to the Administrative Appeals Tribunal.

There are a number of bases on which an agency might rely to refuse your application and if you wish to take the matter further you should seek legal advice to have the best chance of any review being successful.

If you need legal advice regarding and FOI issue, please contact us and one of our lawyers experienced in administrative law will be in touch with you.

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