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Access to Government Information

Freedom of Information

Freedom of information legislation can assist in the better operation of a democratic system by allowing the public to know the real facts behind government decision making and therefore to vote in an informed way.

Another important reason for having freedom of information legislation is to allow people to have access to, and control of information that is collected about them. Governments are increasingly collecting information about people and making decisions based on that information. Information collected by Government is a resource owned by the people and managed on their behalf by Government. People should be able to obtain access to this resource and to participate in government policy development and decision making. Freedom of information and privacy legislation aims to ensure that the information collected about people by government agencies is accurate and not misused.

After a freedom of information (FOI) request is made, government agencies must decide whether to give access to documents, and whether that access should be partial or full access. An agency does not have to give access to exempted material or where the request will unreasonably divert the agency's resources. To maximise the chances of obtaining access on the first request, some strategies include:

  • Try asking for the document before making a formal FOI application. For example ask 'Is there any way I can obtain these documents without having to make a FOI request?'
  • Narrow the request so that it is not voluminous. For example, ask to talk to someone in the relevant area about what you want to see, ask to see a list of files on the subject, or ask to see the agency's 'Statement of Affairs' and 'Statement of Categories of Documents held by that Agency'. By obtaining these documents you may be able to reduce the scope of your search.
  • If a document is exempt, ask if you can have it with the exempt matter deleted. This will help you get the idea of what the contents are.
  • Other tips are outlined in this video by the Office of the Australian Information Commissioner.
  • Consult the Ombudsman (SA) or the Office of the Australian Information Commissioner (Cth) if any response or service is not adequate.

The onus is on the agency to supply a proper reason for an exemption, and where access is refused the applicant can request a precise explanation for the refusal.

State Government

The South Australian Freedom of Information Act 1991 (SA) (FOI Act) came into operation on 1 January 1992 and references in this section are to this Act unless otherwise stated. The Act applies to State government departments, local councils and many State authorities.

How to gain access to information

To gain access to documents, requests must:

  • be in writing to the agency holding the information (although a letter will usually suffice, most agencies have their own printed application forms that can be used. It is also a good idea to keep a copy be kept for personal records);
  • specify that the request is made under the State Freedom of Information Act 1991 (SA);
  • be accompanied by any relevant application fee (which may be waived or reduced in cases of hardship or where the applicant is a concession card holder) [see Freedom of Information (Fees and Charges) Regulations 2018 (SA) Schedule 1 for current application fees];
  • contain enough information to reasonably identify the document(s);
  • give an address in Australia to which notices can be sent; and
  • be lodged at an office of the agency.

See Freedom of Information Act 1991 (SA) s 13.

Agencies cannot refuse an application merely because it does not sufficiently identify a document. The agencies must reasonably assist applicants to provide any necessary information [Freedom of Information Act 1991 (SA) s 15].

Agencies must respond within 30 days of receiving the request [s 14]. However an extension may be granted if there is a large number of documents or consultation on the release of those documents is required. If an extension is granted then the applicant has to be given written notice of this [see s 14A]. If the agency has not determined an application after this time, the agency is deemed to have refused the request [s 19(2)].

Exempt records - documents and agencies

Exempt documents

Not all documents may be accessed. Schedule 1 of the Freedom of Information Act 1991 (SA) contains the list of exempt documents under the Act. These include, for example some of the documents in the following categories:

  • Cabinet documents
  • Executive Council documents
  • documents affecting enforcement of law and protection of public safety
  • documents affecting inter-government or local government relations
  • documents affecting personal affairs
  • documents relating to business affairs (for example trade secrets)
  • certain research documents
  • internal working documents
  • documents subject to legal professional privilege
  • documents concerning the judicial functions of a court or tribunal
  • documents subject to secrecy provisions
  • documents containing material obtained in confidence
  • documents affecting the economy of the State
  • documents affecting financial or property interests of the State
  • documents concerning the operations of agencies
  • documents, disclosure of which would be in contempt of Parliament or contempt of court
  • certain documents arising out of the companies and securities legislation, and
  • private documents in public libraries or archival collections.

See Freedom of Information Act 1991 (SA) Schedule 1 for the detail on what these documents are.

Exempt Agencies

Some agencies are exempt from the Freedom of Information Act 1991 (SA). These are set out in Schedule 2 of the Act and in the Freedom of Information (Exempt Agency) Regulations 2008. These include, for example:

  • all Royal Commissions;
  • the Independent Commissioner Against Corruption (ICAC);
  • the Auditor-General;
  • the Parole-Board;
  • the Solicitor-General;
  • the Commissioner for Victim's Rights;
  • the DPP;
  • the Crown Solicitor;
  • Ombudsman SA;
  • the Police Ombudsman;
  • the Legal Professional Conduct Commissioner;
  • the Compulsory Third Party (CTP) Regulator (with regards to information relating to a claim or action under Part 4 of the Motor Vehicles Act 1959 (SA) and confidential information obtained under Part 3 of the Compulsory Third Party Insurance Regulation Act 2016 (SA));
  • the LGA; and
  • other agencies in respect of certain functions.

See further Freedom of Information Act 1991 (SA) Schedule 2 and Freedom of Information (Exempt Agency) Regulations 2008.

Amendment of personal records

A person can apply for information about personal affairs, which is in a State government agency's record, to be amended where it is incomplete, incorrect, out-of-date or misleading [Freedom of Information Act 1991 (SA) s 30].

The application must be in writing, lodged at the agency with an address in Australia for the agency to communicate with, specify that it is made under the Freedom of Information Act 1991 (SA), and contain enough information to enable the agency to identify the document and amend it accordingly [see further s 31].

The agency may refuse to amend the document if:

  • it is satisfied that the record is not incomplete, out-of-date or misleading; or
  • it believes the application contains matter that is incorrect or misleading in a material way; or
  • procedures for amendment of the record.

    [Freedom of Information Act 1991 (SA) s 35].

The agency must advise the applicant in writing of a refusal to amend the document and of the right to appeal [s 36]. If an agency has refused to amend a record, an applicant can require the agency to place a notation on the record [ s 37].

Review of decisions

An agency might refuse access to or correction of a record as requested. In either case, a person can apply for a review of that decision.

In the first instance, this is by application to the Chief Executive of the agency (internal review). After that, a matter then can be reviewed by the Ombudsman. In addition, or as an alternative, a review can be sought at the South Australian Civil and Administrative Tribunal (SACAT).

Internal review [s 38]

The first stage of seeking a review of a decision to refuse access or correction of a record is to seek an internal review if this option is available [Freedom of Information Act 1991 (SA) ss 29, 38].

Generally an internal review will be available, but there are some decisions where this will not be an option. For instance, an internal review will not be available if the determination has been made by the principal officer of the agency (i.e. the Chief Executive Officer) or at the direction of a person to whom the principal officer is responsible. Whether or not an internal review is available will be indicated on the decision letter or record.

A request for internal review must be:

  • in writing;
  • accompanied by the prescribed application fee;
  • addressed to the principal officer/Chief Executive Officer of the agency;
  • lodged within 30 days of notification of the determination being given to the applicant.

Where a decision is reversed the application fee will be refunded.

If there is no right of internal review for a decision a person may apply directly to the South Australian Civil and Administrative Tribunal (SACAT) – see below Application to SACAT.

Review options after an unsuccessful internal review or where no internal review is available

After an unsuccessful internal review, or where there is no option of internal review available, an applicant may choose to apply to the relevant review authority, the Ombudsman. Alternatively they may apply to the South Australian Civil and Administrative Tribunal (SACAT) – see below Application to SACAT.

Application to relevant review authority (Ombudsman ) [s 39]

The Ombudsman is the relevant review authority if a person has not been successful with an internal review.

The application must be made within 30 days after the date of the decision. An extension may be granted but this is at the discretion (choice) of the relevant review authority.

For the purposes of conducting a review the Ombudsman may carry out an investigation of the matter and exercise the same investigative powers that are conferred under the Ombudsman Act 1972 (SA) [s 39(5)(a)]. It may also require the agency to sort and compile documents if it appears that they have failed to do so.

The Ombudsman has the power to initiate a settlement between the agency and the applicant (person seeking review). If an applicant fails to reasonably cooperate with the review (including efforts to reach a settlement) the Ombudsman may dismiss the application.

Application to SACAT [s 40]

An application to SACAT made by made in three instances:

  • after an unsuccessful internal review application; or
  • in response to a decision that is not subject to internal review; or
  • for review of a decision by the Ombudsman.

The application must be lodged within 30 days of notice of the determination for which review is being sought has been given to the person seeking review [s 40(3)].

The Commonwealth Government

The Freedom of Information Act 1982 (Cth) (FOI) allows a person access to any document held by any Commonwealth government agency, unless the document, or part of it, falls into one of the exemptions listed in the legislation. Anyone can access a document whether or not she or he is involved in or affected by the information.

The Act applies to documents held by government agencies. The term document is broadly defined and includes any record of information [s 4(1)]. A document includes any copy, reproduction or duplicate but does not include library material maintained for any reference purpose or Cabinet notebooks [s 4(1)].

The Act does not apply to documents that are already available in a public register or to documents available for purchase by the public [s 12] (for example, annual reports or information on public registers).

How to get access

Requests for access pursuant to the Freedom of Information Act 1982 (Cth) to documents must:

  • be in writing;
  • state that the request is an application for the purposes of the Act;
  • provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it; and
  • give details of how notices under the Act may be sent to the applicant (for example, by providing an email or postal address).

See Freedom of Information Act 1982 (Cth) s 15(2).

Some agencies have their own printed application forms that can be used. The application can be sent via email or delivered in person or by post to the agency or Minister [s 15(2A)].

For information on what agencies can charge for search and retrieval of documents, copying, delivery and other charges, see the Office of the Information Commissioner's website, which contains a detailed page on this.

Once a request is received by the agency it must be dealt with as soon as possible, within a maximum of thirty days [s 15]. Agencies have an extra thirty days to reply to requests requiring consultation with another person, business or state or territory government [s 15(6)]. There are a limited number of proper reasons for a department to defer giving access [s 21] (such as, until a document has been presented to Parliament). A document may be supplied with exempt or irrelevant matter deleted [s 22].

If inspection is requested agencies must allow access to a document at their office or at an Information Access Office (National Archives of Australia has appropriate facilities to provide access in the form requested) nearest to where the applicant resides. Applicants are usually given copies of the documents or may ask to inspect the documents [s 20]. If an agency fails to provide the documents in the form requested it is considered to be a refusal to grant access to the documents. Some exceptions apply [s 20(3)].

To make effective use of their rights applicants need to know where to look. To assist people, agencies must publish indices and information in their annual reports outlining the contents of their information systems [ss 8-8E]. Agencies must also periodically publish, and give to anyone who asks, certain types of documents. This includes any documents used by an agency in making decisions or recommendations affecting the rights, privileges or benefits of people under any scheme administered by the agency.

Exemptions

The Freedom of Information Act 1982 (Cth) does not apply to all documents, some documents are exempt [s 11]. For example:

  • documents affecting national security, defence, international relations [s 33];
  • Cabinet documents [s 34];
  • documents affecting the enforcement of the law and public safety [s 37];
  • documents to which specified secrecy laws apply [s 38];
  • documents subject to legal professional privilege [s 42];
  • documents containing material obtained in confidence [s 45];
  • documents, disclosure of which would be contempt of court or Parliament [s 46];
  • documents disclosing trade secrets or commercially valuable information [s 47];
  • electoral rolls and related documents [s 47A].

In addition, there is a further category of exemptions where information may be released if it can be shown not to be contrary to the public interest. This includes:

  • documents affecting relations with the States and the Commonwealth [s 47B];
  • documents concerning deliberative processes [s 47C];
  • documents relating to financial or property interests of the Commonwealth [s 47D];
  • documents relating to certain operations of agencies [s 47E];
  • documents relating to personal privacy [s 47F];
  • research documents [s 47H];
  • documents relating to personal professional business affairs [s 47G];
  • documents concerning the economy [s 47J].

Personal documents

All people have the right to access documents containing personal information about themselves and if necessary to ask that the information be amended or that an explanation be attached to the record if:

  • the document contains information that is incomplete, incorrect, out of date or misleading; and
  • the document has been used, is being used, or is available for use by the agency or Minister for an administrative purpose.

See Freedom of Information Act 1982 (Cth) s 48.

Agencies must consult with individuals before releasing documents containing personal information about them to another person [s 27A], except where no reasonable objection could be made. If the agency decides to release the documents those consulted may ask that the matter be reviewed internally [s 54] and may also appeal to the Information Commissioner to oppose release [s 54M].

Resources

Office of the Australian Information Commissioner (OAIC)

Phone: 1300 363 992

The OAIC website has a factsheet regarding Your Review Rights and seeking review by the Information Commissioner.

Agencies to which the Act does not apply

A number of Commonwealth agencies are not subject to the legislation at all and several others are excluded for certain types of documents (for example, documents concerning the competitive commercial activities of the particular agency). Exclusions are set out in Schedules 1 and 2 of the Freedom of Information Act 1982 (Cth).

Several of the exempt agencies are engaged in commercial operations. Other organisations which have been excluded from the Act are concerned with matters such as Aboriginal self management, labour relations and Australian secret intelligence (for example, the Australian Security Intelligence Organisation and the Australian Security Intelligence Service).

Some agencies have exemptions for particular classes of documents, mainly relating to the agency's competitive commercial activities. These agencies (for example, the Commonwealth Attorney-General's Department) have had documents excluded as they would be significantly disadvantaged in their competition with private sector organisations who could obtain information about their operations through FOI legislation. Examples of other classes of documents that are protected include Australian Broadcasting Corporation and SBS program material [see Freedom of Information Act 1982 (Cth) schedule 2].

Access to old documents

Documents created prior to 1 December 1977 are not covered by the Act, and are, strictly speaking, not available. Older documents which can still be accessed are:

  • personal records, whenever created
  • documents containing information on the applicant's business, commercial or financial affairs
  • support documents reasonably necessary to properly understand the main documents.

However, the Act encourages release of documents whenever possible and the Government does not intend to prevent or discourage powers to publish and access information not covered by the Act [Freedom of Information Act 1982 (Cth) s 3A]. Under the Archives Act 1983 (Cth), documents more than thirty years old are available for public access by applying to any office of the Australian Archives.

Charges

Some fees can be charged for access to information sought under the Freedom of Information process.

For information on charges see the Office of the Australian Information Commissioner's website.

Internal reviews

In most cases, a person denied access may apply for review. The first stage in the review process is an internal review by the principal officer of the agency concerned [s 54B]. The application must be lodged within 30 days of the applicant receiving the decision.

If the internal review is not successful the applicant has a right to seek a review with the Information Commissioner [Freedom of Information Act 1982 (Cth) ss 54L, 54M].

Information Commissioner

If access to a document is denied an application for review may be lodged with the Office of the Australian Information Commissioner.

The application must be lodged within 60 days from the date the applicant received the internal review decision however an extension of time can be applied for under section 54T of the Freedom of Information Act 1982 (Cth) . However applications must be made within 30 days if they request review of a decision to grant access to documents to another person.

There is no charge for such an application.

See further the OAIC's information on the FOI Review Process.

Role of the Ombudsman

The role of the Commonwealth Ombudsman in investigating complaints about Freedom of Information matters has now substantially been transferred to the Office of the Australian Information Commissioner (OAIC). However, under s 74 of the Freedom of Information Act 1982 (Cth) the OAIC can transfer an investigation to the Commonwealth Ombudsman if satisfied that the complaint could be more appropriately dealt with by the Commonwealth Ombudsman. Examples include, complaints about the way in which the OAIC has dealt with a review, and complaints relating to an FOI application which also relate to other matters that would be more appropriately dealt with by the Commonwealth Ombudsman.

Personal Information

Change of name

Many people change their names without taking any formal action, as there is no law to prevent people using any name they choose. A change of name may be established by repute or usage, however there may be difficulties when using the name for official purposes if the name change has not been properly registered.

Registering a change of name

Any person over the age of 18 years can change his or her name by obtaining the appropriate form from the Births, Deaths and Marriages Registry and paying the fee.

The completed form must be signed and witnessed in the presence of a Justice of the Peace and lodged with a certified copy of the applicant's birth certificate and two forms of identification. Registration takes five working days and a registration certificate can then either be collected from the Registry or arrangements can be made for it to be posted to the applicant.

There is a fee to register a change of name, which includes a Change of Name Certificate or an amended Birth Certificate. If a person is unable to visit the Registration Office, they can telephone 131 882 to discuss alternatives and further information about what is required is available on the SA Gov- Apply for a Change of Name Certificate website.

There are additional requirements that must be met for a "restricted person" (such as a prisoner, or person subject to certain home detention or extended supervision orders) to be able to change their name. Such requirements are contained in Part 4, Division 2 of the Births, Deaths and Marriages Registration Act 1996 (SA).

If parents of a child want to change the child's name, the name change can be registered by lodging the required forms with the Births, Deaths and Marriages Registry. In situations where one parent wishes to change a child's name, but the other parent does not consent, an application may be made to SACAT seeking an order that the name be changed, see: Changing a Child's Name. Fees apply for both the application to SACAT and the application to the Registry.

Change of name on marriage

There is no law requiring a spouse to take the other spouse's surname on marriage, or vice versa. If a person does decide to adopt their partner's name, no formal registration of the change is needed. Generally, it is sufficient for a person to inform the relevant agencies and institutions of the marriage and the change of name. Sometimes (such as when applying for a passport) it may be necessary to produce the marriage certificate. It is also legal for a person to keep their premarital names for professional or business affairs while using their married names in their private lives.

Change of name on separation or divorce

A person may choose to keep their partner's name after the marriage has been dissolved, or they may go back to using their premarital name. There is no need for a person to wait until the divorce is final before changing their name. A person who remarries may adopt their new partner's surname or use their first partner's name, or their premarital name.

Change of sex or gender

The Australian Government has guidelines on the recognition of sex and gender. They are available to access via the Attorney General's website.

In particular the guidelines provide that where sex and/or gender information is collected and recorded in a personal record by a government agency, individuals should be given the option to select M (male), F (female) or X (Indeterminate/Intersex/Unspecified).

The guidelines also provide the processes for changing sex or gender information across Australian Government records.

Registering a change of sex or gender

The Births, Deaths and Marriages Registration Act 1996 (SA) provides for persons born in South Australia to apply to change the registration of their sex or gender identity. It also provides for those who are resident in South Australia, but who were born outside of Australia, to apply for an identity acknowledgement certificate [Births, Deaths and Marriages Registration Act 1996 (SA) Part 4A]. The application must specify a sex or gender of a kind recognised under the Births, Deaths and Marriages Registration Regulations 2011 (SA) [reg 7A]:

  • male
  • female
  • non-binary or
  • indeterminate/intersex/unspecified

These applications may be made even if the person is married.

Prior to 23 May 2017, recognition certificates were issued by the Magistrates Court under the Sexual Reassignment Act 1988 (SA), which is now repealed, and these were then registerable with the office for Births, Death and Marriages. The Sexual Reassignment Regulations 2015 (SA) continues to provide for this registration, for those recognition certificates issued by the Court but not yet registered.

Persons born in South Australia

A person whose birth is registered in South Australia and is 18 years of age or over may apply to the Registrar of Births Deaths and Marriages to register a change of their sex or gender identity [s 29I].

Material supporting application

An application to register a change of sex or gender identity must be accompanied by either [s 29K]:

  • a statement by a medical practitioner or psychologist certifying that the person has undertaken a sufficient amount of appropriate clinical treatment in relation to the person’s sex or gender identity; or
  • a copy of a designated certificate (a certificate from another jurisdiction) or a prescribed notification (a notification from another jurisdiction)

Persons born outside Australia but resident in South Australia

A person who was born outside Australia and whose birth is not registered in any State or Territory of Australia, but who is 18 years of age or over and who has been resident in South Australia for at least 12 consecutive months before making an application, may apply to the Registrar for an identity acknowledgment certificate [s 29O]. These applications must also be accompanied by a statement by a medical practitioner or psychologist certifying that the person has undertaken a sufficient amount of appropriate clinical treatment in relation to the person’s sex or gender identity.

Applications by children

For those under the age of 18, the Magistrates Court must first approve the making of the application. Approval may be granted if the Court is satisfied that it would be in the best interests of the child [ss 29J and 29P]. A child is taken to have the capacity to make an application.

Access to register and issue of extracts or certificates

Extracts and certificates issued after the person has registered a change to their sex or gender identity must only disclose and certify up-to-date details [s 29M(1)]. This means that a birth certificate issued following a registration of change will certify the person’s registered sex or gender identity at that time.

Only the person who has registered the change to their sex or gender identity, their partner, parent, child, the executor or administrator of their estate, or a legal practitioner authorised by them, are allowed to access information from and be issued with an extract or certificate as to the person’s sex or gender identity before registration of the change [see s 29M(2)(b) and reg 7D]. An officer or employee of state or federal police and other like authorities may also apply.

Entitlements under will, trust or other instruments

A person’s entitlement under a will, trust or other instrument is not affected by a change to the person’s sex or gender identity, unless the will, trust or other instrument specifically provides otherwise [s 29T].

Police and Court Records

Police records

Police records are restricted and can only be accessed in a limited way.

Criminal Convictions

An individual can request criminal conviction information themselves in the form of a police check, either through the State or Federalpolice. This may be requested by certain people or organisations like a potential employer, an adoption agency or for a visa, but only will be provided directly to that organisation if you consent. Under Commonwealth law there is a spent and minor convictions procedure, where if there have been no convictions for more than ten years (five for a Youth Court matter), and the conviction is minor then it will not be disclosed. The South Australia police also follow this as a matter of policy. See Effects of Criminal Convictions or the Criminal Records page on the AFP website.

Other organisations, departments or individuals have to show that the records are legitimately required for the investigation into potential risk, suspected offence and/or prosecution of an offender to obtain the records wtihout the consent of the individual. They will also need to specify the relevant section of legislation that provides these powers. Parents can only obtain this information about a child under 18 years of age with the child's consent.

Police Reports

Police reports of motor vehicle accidents or incidents can be released in certain circumstances. If you were involved in the incident you may obtain a police incident report or a vehicle collison report. If you are in some way associated (for example the owner of property damaged) but not mentioned in the report then you can get often still get the incident report if you provide information and/or proof on how you are associated and why you need the information. However, personal details of the parties will not be provided.

Freedom of Information

The usual procedures and exemptions apply to the police. See State Government.

Court Records

As a general rule courts are open to the public and the public may access information about what happens in court. Sometimes access is restricted or information suppressed to protect a witness or in the administration of justice, for example victim evidence in relation to sexual offences. However, generally anyone can obtain information about what happened in court, what orders were made or what was said when someone was sentenced.

Family or Federal Circuit Court matters in relation to family law proceedings (divorce, child custody etc) are closed and no information may be obtained by a person who is not a party to the proceedings. This also prevents a party to the proceedings from disclosing information. Only the lawyers, judges, persons directly involved in the case and any experts consulting on the case may see any of the documents. Judgements are published but the names are not, parties are referred to by an initial [Family Law Act 1975 (Cth) s 121 ].

Often it is required to provide family court orders to other organisations to ensure that they are complied with, such as childcare centres or schools. Whilst this does not breach confidentiality, the organisation can not pass on that information on to others to whom it is not relevant for the enforcement of the order. For example, the organisation may inform the relevant staff members, but may not inform other parents at the school or childcare.

    Access to Government Information  :  Last Revised: Thu Jan 5th 2017
    The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.