Assessment of Documents Request: A Case Study

Jasmine, an applicant, has been denied access to budget documents by the Minister's Office on grounds that they are private and not intended for public disclosure. However, upon reviewing the Freedom of Information Act, 1982, it is clear that the refusal order passed by the Minister's office is ambiguous and against the law. The act provides remedies for Jasmine, including non-judicial review and judicial review. Furthermore, the act allows Jasmine to make a complaint to the ombudsman, which can investigate the matter and provide findings on the actual situation of the complaint. In light of these provisions, it is concluded that Jasmine has the remedy to challenge the order passed by the Minister's office as it is illegal and against the settled law.

Running Head: Freedom of Information Act, 1982
Title:
Assignment Name:
Student Name
Course Name and Number:
Professor:
Date:

Freedom of Information Act, 1982
Table of Contents
Introduction:...............................................................................................................................3
Legal Issues:...............................................................................................................................3
Legal Issue i:...........................................................................................................................3
Legal Issue ii:.........................................................................................................................5
Legal Issue iii:........................................................................................................................5
NonJudicial Review:..............................................................................................................6
Judicial Review:.....................................................................................................................6
Conclusion:..............................................................................................................................10
References................................................................................................................................12

Freedom of Information Act, 1982
Introduction:
That the given present case problem is about the remedies available to person under the
provisions of the Freedom of Information Act, 1982 as if the request to access the documents
relating to Minister’s Office had been rejected by the agency or the officers of the Ministers.
Under this solution, the discussion is about the remedies available like the powers of review
against the order of the agency.
Legal Issues:
After going through the facts of the case, the following legal issues arise in the present given
case:
i) Whether the federal government is duty bound to access to the documents
required by Jasmine as per the Freedom of Information Act, 1982?
ii) Whether the order of refusal passed by the federal government without giving any
opportunity of being heard and furthermore the only offer is given to consulting
the chief regarding the revise of her request was legally justified as per the act?
iii) Whether any other remedy available to Jasmine once the refusal of the request
under FOI Act, 1982 had been passed?
Legal Issue i:
The main aim of the FOI Act 1982 as described in Section 3 of the act that to require the
agencies to give the information and also to give for the right to access the documents1. The
intention of the parliament behind this act is to build up the Australia’s representative
freedom by growing the public participation in the public action with a view to growing the
better-knowledgeable decision-making. The other intention of the parliament is that the duties
and the powers are provided under this act have to be exercised and to grow the public
1 Jamie Beagent, "Funding For Judicial Review" (2013) 18(2) Judicial Review.

Freedom of Information Act, 1982
approach to information at the lowest reasonable cost. Furthermore under section 3A2 of the
act, it has been specifically mentioned that the ministers or the officers of the agency have the
talent to publish or to provide approach the information or document which also includes the
exempted document apart from this act. Under the act, there is list of documents mentioned
which are exempted from assessing to the public under this act like the documents which
affect the security of the nation or the relations at the international level, the documents
which effect the administration of law or the security of the public safety, parliamentary
budget office documents.
While considering the above-stated points it is made clear that no doubt the federal
government is duty bound to access the information to Jasmine as per the act but there are
some exemptions under which the government can refuse to give the information.
Furthermore, under the act, Jasmine has the power of non judicial review which is also
known as the internal review under section 543 of the act. For the clear understanding of
section 54 i.e. power of internal review, it is important to understand the concept of non
judicial review. Non judicial review in the simple sense is the review of the order passed by
the original decision makers. For example the review of the order by the higher officials,
Administrative Tribunals etc. So, the provisions of Section 54 of the FOI Act, 1982 applies
whereby the order of refusal to access the documents has been passed and as per this section
the applicant i.e. Jasmine can implement in relation to this for the review of the refusal
decision. This section clearly deals with the power of the non judicial review. As discussed
above, generally in the simple sense the non judicial review is the power of the review
outside the courts.
2 Declan O'Callaghan, "Staying Judgments And Orders In Judicial Review" (2012) 17(2) Judicial Review.
3 Michael Farrell, "AC/DC As First Emu Prime Minister" (2016) 30(1) Antipodes.

Freedom of Information Act, 1982
Legal Issue ii:
As per the given facts and circumstances, it is the admitted fact that the Government had
passed the refusal order without giving any opportunity to Jasmine and furthermore they had
inadequately given the offer of consultation within two days which is not justifiable in any
case. From the perusal of the facts, it is made clear that while deciding the request to access
the documents the proper procedure has not been followed as the act. Under section 24AB of
the Freedom of Information Act4, 1982 it is specifically mentioned that the officers or the
Minister should written the written notice mentioning their intention to refuse access to the
documents and furthermore under that notice the consultation period should also be
mentioned which is 14 days afterwards the applicant had given the notice. In the present case
the clear deficiency on the part of the government officers clear from the fact that they had
refused the request to access the documents without giving any intention notice and
furthermore the government had given the 2 consultation period and that is also only by
visiting their office which is not legally justified as per the act. Moreover, under the refusal
order, the only option given to Jasmine is two (2) days consultation period which is also only
for revising her request and nothing else. But after going through the legislation, it is made
clear that the officers or the minister should provide the notice to the applicant to satisfy them
about their request otherwise they had the option under the act to revise the request of the
applicant.
Legal Issue iii:
While going through the facts, the federal government had given the option to Jasmine to
revise their request with the consultation period of two (2) days which is not legally justified.
It is the admitted fact that Jasmine has refused the offer given by the Government to revise
their request as she stated in refusal letter that she does not want to review her request as she
wanted to expose the political agenda of the government of slashing the education funding.
4 Antonio Gargano, Alberto G. Rossi and Russ Wermers, "The Freedom Of Information Act And The Race
Towards Information Acquisition" [2014] SSRN Electronic Journal.

Freedom of Information Act, 1982
Under the provisions of the 52 of the FOI Act, 1982 the internal review of decisions had been
mentioned. As per the section 52, the applicant can avail the remedy of internal review
against the decisions of the agency or the Ministers5.
Non Judicial Review:
Non Judicial review is the remedy which can be used by the applicant outside the court and if
the matter resolved then the no need arises to avail the judicial remedy. Under the provisions
of the 52 of the Freedom of Information Act, 1982 the internal review of decisions had been
mentioned. As per the section 52, the applicant can avail the remedy of internal review
against the decisions of the agency or the Ministers. That thereafter the decision of the
internal review, if not satisfied the applicant can avail the remedy of the review by the IC.
The information commissioner can make the preliminary inquiries as to decide as whether to
decide the review or not? It at any stage the information commissioner is of the view that the
review application contains some question of law then that issue may be referred to the
Australian Federal Court at time of the pending review application.
Judicial Review:
That under the FOI Act, 1982, if the applicant is not satisfied with the decision of the review
by the information commissioner then the applicant may approach the Administrative
Appeals Tribunals by filling an application for review of the order of the IC. Furthermore as
decided in the case of Dreyfus and Attorney-General (Commonwealth of Australia)
(Freedom of information) [2015] AATA 995 (22 December 2015), the tribunal had set
aside the order of the review by the information commissioner. In the given case, the decision
was informed to the applicant by 13th June 2014 whereby it was informed that the reason of
the practical refusal comes into existence as the work which is involved in the processing of
5 "Prime Minister Reaffirms Review Body's Independence Quality Document Is Too Centralist GMC
Consults On Consent" (1998) 317(7154) BMJ.

Freedom of Information Act, 1982
the request in terms of the FOI Act, 1982 (Cth) would considerably and without any reason
interfere in the performance of the function of Attorney-General be set aside. In this case, the
tribunal has set aside the order passed by the Attorney General and held that the Attorney-
General has not released the burden under Section 61 (1) (b) of the Freedom of Information
Act that the decision is confirmed or that the Tribunal should give a order which is adverse to
the applicant. Accordingly, the order of the Attorney-General’s delegate that the reason for
the practical refusal which came into existence in relation to the requests must be quashed.
That furthermore in “The Australian and Prime Minister of Australia [2016] AICmr 84 (7
December 2016)” the scope of the official document of the minister has been discussed. It is
mentioned that under section of the FOI act, 1982 that the each person has the legally
constitutional right to get approach to the document of an officers other than which are exempted
document or an official document of the minister. Furthermore the definition of official document
of a minister is defined under Section 46 of the Freedom of Information Act that the record which
is in the custody of the minister or in his or her capacity as a minister, being any document which
relates to the affairs of the agency or the department of the state. In the present case, the Prime
Minister Office had submitted the confidential letters to the Australian Information
Commissioner’s office which contends that the document does not fall under the definition of the
official document of the Minister. Moreover the Prime Minister office contends that the part of the
documents relates to the meetings between the Prime Minister7 who is the recently elected leader
of the Liberal Party and the political colleagues who had to consult on the political party matters,
rather than to the affair of an agency or the department of the state.
That thereafter in Paul Farrell and Prime Minister of Australia (Freedom of information)
[2017] AICmr 44 (15 May 2017) the discussion was made about whether the work involved in
6 "Facing The Ombudsman" (2002) 17(9) Nursing Standard.
7 Anita Stuhmcke, "Evaluating Ombudsman: A Quantitative Study Of The Australian Commonwealth
Ombudsman" [2007] SSRN Electronic Journal.

Freedom of Information Act, 1982
the processing the request will considerably or without any reason interfere with the performance
of the Minister’s function.
That under the provisions of the FOI act, 1982, it is specified that the on the complaint of the
person or the information commissioner suo moto can investigate the proceedings initiated by
the officer in performance of their duties and in exercise of their powers under the provisions
of the act. If the complainant disputes the merits of the access information then under the
provisions8 of this act the review application can be made. Furthermore under the act, the IC
has the power to get the record, to question the persons or to enter into the premises while
investigating the matter. After concluding his investigation, the IC should give the notice to
the complainant and the agency of the respondent mentioning the findings of the IC or any
recommendations which the IC ought to be implemented. After investigation, if the IC is not
convinced that the agency had taken the appropriate actions to apply the recommendations
then the IC can take the further steps like the forward of the complaint to the ombudsman.
That under the FOI act, 1982 the provision of appeals to the Federal court of Australia had
also been mentioned. Section 56 of the FOI act, 1982 deals with the appeals to the Federal
Court of Australia on question of law. This section talks about that any review party can
appeal to the Federal Court of Australian under the act if there is any substantial question of
law from the decision of the information commissioner on the Information commissioner
review. Furthermore it has been mentioned that the appeal under the said section cannot be
instituted after the 28 days of the day of the decision of the information commissioner on
information commissioner review9.
8 "Ombudsman Roles For Social Workers" [1972] Social Work.
9 Philip Leith, "Squeezing Information Out Of The Information Commissioner: Mapping And Measuring
Through Online Public Registers" (2006) 3(4) SCRIPT-ed.

Freedom of Information Act, 1982
After going through the above stated legislations and provisions, it is clear that Jasmine has
the remedy of review i.e. Non Judicial review as well as Judicial review are available as per
the provisions of the Freedom of Information Act, 1982. In the instant given situation, the
request for assessing the documents by Jasmine had been rejected by the Minister’s Office on
the ground that the dairy was exempted from disclosure as the entire documents of the dairy
including the meetings with the cabinet or other department officials are private and they are
not intended to make available for the public and furthermore they rejected the request of
Jasmine on the ground that even if the dairy is not exempted10 then it will take more time to
access the documents. So, while going through the provisions of the act it is clear that the
refusal order passed by the Minister’s office was very ambiguous as while rejecting the
request to assess the documents they are giving the contradictory statements. On one hand
they rejecting the request on the ground that the dairy is exempted from the disclosure and on
the other hand they are saying that if it is not exempted then it will take much time to access
the documents. That the order passed by the Minister’s office is not sustainable in the eyes of
the law as they rejected the request on the ground that the meetings with the officials or the
cabinet ministers are private but it is the well settled law that the meetings of the department
officials and cabinet ministers are totally public and the public has the right to access the
documents11. From the above discussed arguments raised and documents on record, it is clear
that the order passed by the Minister’s office is against the law and arbitrary12. So, as per the
provisions of the law, Jasmine can challenge the order passed by the Minister’s office as it is
ambiguous and totally against the settled provisions of law.
Conclusion:
10 Harold C. Relyea, "Freedom Of Information And The Right To Know: The Origins And Applications Of The
Freedom Of Information Act" (2001) 27(1) The Journal of Academic Librarianship.
11 Christopher M. Mason, "Developments Under The Freedom Of Information Act: 1981" (1982) 1982(2) Duke
Law Journal.
12 BEN WORTHY, "More Open But Not More Trusted? The Effect Of The Freedom Of Information Act 2000
On The United Kingdom Central Government" (2010) 23(4) Governance.

Freedom of Information Act, 1982
In the end it is concluded that the order of refusal to access to the documents passed by the
agency of the Minister is illegal and liable to be set aside in view of the provisions discussed
above. Furthermore the various courts are of the view that access to the documents related to
the Minister’s office would not amount to the substantial or unreasonable interfere within the
performance of the official functions. In the present given case, it is made clear that the
request has been sent to the federal government to access to the budget documents but the
request of the applicant had been refused on the ground that same was private information
and not came under the ambit of public information. The main point which was considered
under this case is that the request of the applicant had been dismissed on the ground that the
entire contents of the dairy including the meetings of the cabinet with the department officials
did not pertain to the government affairs. But this fact has been set aside by many of the
Federal Courts of Australia. The Courts had held that the meetings with the cabinet ministers
and the department officials are directly pertaining to the government affairs. To understand
the facts and situation in brief the definitions of the Ministers documents etc and the many
other definitions had also been discussed and from the perusal of that it is made clear that the
refusal order passed by the Federal Government is totally inadequate and against the legal
provisions. Jasmine has the remedy to review of the decision of the agency by way of non
judicial review as well as judicial review. But from the perusal of the act is also clear that the
applicant has to move in hierarchy to avail the remedies. Moreover from the perusal of the
Freedom of Information Act, 1982 it is clear that the applicant can also made a complaint to
the ombudsman whereby the information commissioner can investigate the matter and give
his findings about the actual situation of the complaint. Furthermore it had also discussed in
the present case that the opportunity of being heard was not given to the applicant i.e.
Jasmine and without intimating her the order of refusing the request was passed which was
totally contrary to the provisions of the Freedom of Information Act, 1982. Under the act the

Freedom of Information Act, 1982
specific provision was mentioned regarding this and in the present case, the Jasmine is
entitled to access to the document requested by her. So, in the end it is to be concluded that
Jasmine can avail the remedy of review as well as appeal for setting aside the refusal order
passed by the Federal Government as the refusal order is totally inadequate and against the
prescribed provisions of law. After going through the present facts and circumstances of the
case, it is clear that the applicant i.e. Jasmine is entitled to receive the information requested
by her to the Federal government as per the provisions of the Freedom of Information Act,
1982.

Freedom of Information Act, 1982
References
Beagent, Jamie, "Funding For Judicial Review" (2013) 18(2) Judicial Review
"Facing The Ombudsman" (2002) 17(9) Nursing Standard
Gargano, Antonio, Alberto G. Rossi and Russ Wermers, "The Freedom Of Information Act
And The Race Towards Information Acquisition" [2014] SSRN Electronic Journal
Leith, Philip, "Squeezing Information Out Of The Information Commissioner: Mapping And
Measuring Through Online Public Registers" (2006) 3(4) SCRIPT-ed
Mason, Christopher M., "Developments Under The Freedom Of Information Act: 1981"
(1982) 1982(2) Duke Law Journal
Michael Farrell, "AC/DC As First Emu Prime Minister" (2016) 30(1) Antipodes
O'Callaghan, Declan, "Staying Judgments And Orders In Judicial Review" (2012)
17(2) Judicial Review
"Ombudsman Roles For Social Workers" [1972] Social Work
"Prime Minister Reaffirms Review Body's Independence Quality Document Is Too
Centralist GMC Consults On Consent" (1998) 317(7154) BMJ
Relyea, Harold C., "Freedom Of Information And The Right To Know: The Origins And
Applications Of The Freedom Of Information Act" (2001) 27(1) The Journal of
Academic Librarianship
Stuhmcke, Anita, "Evaluating Ombudsman: A Quantitative Study Of The Australian
Commonwealth Ombudsman" [2007] SSRN Electronic Journal

Freedom of Information Act, 1982
Worthy, Ben, "More Open But Not More Trusted? The Effect Of The Freedom Of
Information Act 2000 On The United Kingdom Central Government" (2010)
23(4) Governance