Access to documents under FOI

Who can make an FOI request?

Any person can make an FOI request, so long as the request is validly made in writing.

What types of documents are covered by FOI?

All documents (whether originals or copies) in the Tribunal's possession, whether temporarily or permanently, and whether created by the Tribunal, or merely received by it from a another party, are covered by the FOI Act.

What kinds of documents can you access under FOI?

Under the FOI Act, a 'document' is defined to include:

  • maps
  • drawings
  • tables
  • sound and video recordings
  • computer discs
  • information stored on the computer hard drive itself.

A list of files (including files relating to policy, development of legislation, and other matters of public administration) created by the National Native Title Tribunal is included on this web site.

How can you make an FOI request?

An FOI request must be made in writing to the Tribunal. The request should contain enough information to identify the documents which you want to access.

Where an unclear request is made, the Tribunal is obliged to take reasonable steps to assist people to identify the documents they seek to access.

How much do you have to pay when you make an FOI request?

An application fee of $30 must accompany a written FOI request. Additional charges may be payable (usually on an hourly rate) for time spent by the Tribunal in locating the documents requested, and granting access. If this is applicable, you will be notified by the Tribunal of an estimate of these additional charges.

Fees may be payable under FOI.

Can charges for FOI requests be waived?

The fees normally payable for FOI requests (including the application fee) may be reduced, waived or remitted by the Tribunal in particular cases. For example, the fees may be waived or remitted if you can show that payment of the FOI fees will cause you financial hardship, or that it is in the public interest to give access to the document without charging full or any fees.

What happens after you make an FOI request in writing?

The Tribunal must take all reasonable steps to notify you that it has received your request within 14 days of receiving your FOI request.

The Tribunal must make a decision in relation to your FOI request within 30 days of the date of receiving your request.

If the documents you have requested concern another person, the Tribunal must write to that other person to seek their comments before making a decision about your FOI request. If this is the case, the Tribunal will write to you and tell you that it is consulting with other persons. If this happens, then after consulting with those other persons, the Tribunal must make a decision about your FOI request within 60 days of receiving your FOI request.

Why might the Tribunal need to consult with third parties before making a decision in relation to your FOI request?

Where information in a document concerns another person, and where an exemption under the FOI Act may apply to disclosure of that information, the Tribunal must consult with that person, to find out whether or not they have any objection to the release of that information to you under the FOI request. For example, a person may oppose the release of documents falling within the FOI request on the basis that the documents contain personal information or confidential business information.

After consulting with that other person, the Tribunal may decide that the document is not exempt, despite any objections that person might have had to release of the documents under FOI. If this is the case, the objectors must be notified of the Tribunal's decision to release the documents, and provided with written reasons for the decision.

The Tribunal cannot give access to any of the disputed documents until after the objectors have had an opportunity to exercise their rights of review if they feel that the information should not be released.

The objectors have 30 days from the date of the Tribunal's decision to release documents to apply to the Tribunal for an internal review of that decision, or to make a review application to the Administrative Appeals Tribunal (AAT). If the objectors apply for internal review, and are dissatisfied with the result of that internal review, they have another 30 days from the date of being given notice of the review decision to apply to the AAT for a review of that decision.

If the objectors do not make any review applications within these timeframes, the Tribunal may proceed to give you access to the documents in accordance with your application.

Who makes a decision in relation to your FOI request?

Under the FOI Act, the President and any officers he authorises can make decisions concerning FOI requests made to the Tribunal. The decision-maker is identified in any reasons that must be provided under the FOI Act. Where an application for internal review of the primary decision has been made, a different decision-maker undertakes the review.

Not all documents are available under FOI

The grant of a broad right of access to the public in relation to documents held by Commonwealth agencies is reduced by some statutory exemptions.

The exemptions provide certain grounds for refusing disclosure of documents to people who make FOI applications. There may be more than one exemption that applies to a document.

The exemptions will only be applied to protect essential public interests (including the proper functioning of the Tribunal) and the private and business affairs of third persons.

The Tribunal may refuse to process a request where to do so would substantially and unreasonably divert the resources of the agency. This may arise if, for instance, a request is made for 'all documents relating to native title claims and pastoral leases in any of the Tribunal's files'. The Tribunal must first give you an opportunity to consult with it in an effort to reduce the request to a manageable size.

Examples of some of the exemptions under the FOI Act which may apply to certain documents:

Documents containing:

  • confidential information
  • personal information
  • business information where the release, for example, would reveal trade secrets or otherwise reduce the value of the information
  • information whose disclosure would be contrary to the public interest, or contrary to an order or direction of a Tribunal
  • information which might affect relations between the Commonwealth and a State
  • information which might affect national security

Viewing documents to which you have been granted access under FOI

The Tribunal may provide you with access to documents in a variety of forms, including:

  • inspecting the hard copy document
  • providing a copy of the document
  • allowing you to listen to or view a 'document' which is in the form of a video or audio tape;
  • providing a transcript of a document
  • providing access to electronic copies of documents stored on a computer

The Tribunal may also grant access to edited forms of requested documents, with any exempt or irrelevant material deleted in the copy supplied to you as the applicant.

What happens if the Tribunal decides not to give access to documents in accordance with your FOI request?

If the President or any authorised officer deny access to requested documents under FOI, they must do certain things, including providing:

  • written reasons for that decision
  • the findings on material questions of fact and the material on which those findings were based
  • information about your rights of review with respect to the decision
  • the name and designation of the decision-maker
  • whether any irrelevant or exempt matters have been deleted from a document, and the ground for the deletion

You may, within 30 days of being given notice of the Tribunal's decision, ask for an internal review of the decision by a person other than the original decision-maker. The Tribunal may extend this timeframe. The review will be conducted by someone other than the original decision-maker. The reviewer will consider your FOI review request from the beginning.

If you are dissatisfied with the outcome of the internal review, you may apply to the Administrative Appeals Tribunal (AAT) within 60 days of the date of being notified of the original decision made by the Tribunal for a review of the final decision of the Tribunal. This timeframe may be extended by the AAT.

If you are applying for access to documents under FOI and are unhappy with the Tribunal's decision, you must apply for internal review before you can apply to the AAT.

The review rights for third parties are different. If you are a third party who does not wish to have certain documents disclosed, you can either apply for an internal review of the Tribunal's decision within 30 days of being given notice of that decision, or apply directly to the AAT for a review of the Tribunal's decision. If you are still dissatisfied with the outcome of the Tribunal's review decision, you then have another 30 days from the date of being given notice of the review decision to apply to the AAT for a review of the Tribunal's decision.

The fee for an application for internal review is $40, and the fee for an application to the AAT is $639. Further information is available from Administrative Appeals Tribunal (AAT).

You can also ask the Commonwealth Ombudsman (the Ombudsman) to review the Tribunal's decision-making process, to make sure that any decisions were made in a fair and proper way. The Ombudsman can't change the decision, but can recommend that this be done. Further information is available from the Commonwealth Ombudsman.

For definitions of specific native title words and terms see the Glossary.