Introduction

Yesterday, the Attorney-General introduced the Freedom of Information Bill 2025 (Bill). The Bill proposes changes to the regime established by the Freedom of Information Act 1982 (Cth) (FOI Act), noting that if passed, they will reflect arguably the most significant changes to the FOI regime since its inception in 1982. For example, if passed in its current form, the Bill will:

• introduce application fees for particular FOI requests;
• remove the ability for an FOI applicant (Applicant) to remain anonymous or use a pseudonym;
• update the statutory timeframes to ensure that they refer to ‘working days’ rather than ‘calendar days’;
• significantly change how personal information about particular Commonwealth Government officers or employees (current or former) is treated;
• change the application of the Cabinet exemption and the ‘deliberative processes’ exemption;
• introduce a ‘processing cap’ that can be applied when determining whether a ‘practical refusal reason’ exists;
• introduce clearer requirements in relation to the handling of ‘deemed refusals’; and
• introduce the ability for agencies and Ministers to refuse to process vexatious or frivolous FOI requests. 

As discussed by the Attorney-General in a media release, the Bill has been introduced to:

• ‘ensure genuine requests are prioritised while saving taxpayers money on frivolous and automated requests’;
• ‘[clarify] existing exemptions, including in relation to Cabinet confidentiality, to ensure they are consistent with their original policy intent’;
• ‘[address] barriers to frank and fearless advice by ensuring the test for accessing deliberative documents is clearer in law and easily understood’; and
• ‘[safeguard] against potential abuses from anonymous or nefarious offshore actors’.

The proposed changes

1. Application Fees

The Bill provides for the introduction of application fees for particular:  

• FOI requests;
• internal review requests; and
• requests for Information Commissioner (IC) review.  

However, the Bill provides that fees will not be payable:

• if an Applicant is seeking access to a document containing their own personal information;
• if an Applicant is seeking to access, on behalf of a third party, a document containing personal information about the third party; or
• in prescribed circumstances of financial hardship. 

The Bill also expressly requires that the fees must not be so high as to amount to a tax. 

2. Identification Requirements 

The Bill includes significant changes from an Applicant anonymity and pseudonymity perspective, which are designed to prevent the use of automated requests for access from unknown actors, and to prevent foreign actors from anonymously seeking access to Commonwealth Government documents. 

For example:

• Applicants will be required to provide their full name when making an FOI request;
• if an Applicant is making a request on behalf of a third party, the Applicant will be required to provide the full name of that third party;
• requests about an Applicant’s personal information, or information about their business, commercial or financial affairs, must be accompanied by proof of the Applicant’s identity (in a form to be specified by the agency or Minister); and
• if an Applicant is making a request on behalf of a third party, and the request is for the third party’s personal information, or information about the third party’s business, commercial or financial affairs, the request must be accompanied by proof of the Applicant’s identity, proof of the third party’s identity, and proof that the Applicant is authorised to access the documents on behalf of the third party. 

3. Timeframes 

The Bill provides that the statutory timeframes in the FOI Act, which currently operate on a calendar day basis, will be changed to a working day basis. For example, an agency will have 30 working days in which to process a primary FOI request, rather than 30 calendar days. The definition of a working day will be any day other than:

• a Saturday;
• a Sunday;
• a public holiday in the Australian Capital Territory; or
• a day in the period beginning on 25 December in a year, and ending on 1 January in the next year. 

4. Information about Commonwealth Government Employees

The Bill proposes significant amendments to the way in which personal information about particular Commonwealth Government officers or employees (current or former) (employee identifying information) is handled. For example:

• employee identifying information will not be regarded as relevant to a request unless it is specifically requested by an Applicant; and
• if employee identifying information is specifically requested, the information can be redacted if:
  • the information is not already publicly known to be associated with the subject matter of the document; and / or
  • disclosing the information is not necessary to meaningfully increase scrutiny, discussion or comment on Government processes or activities.

However, employee identifying information will not include the names, email addresses or telephone numbers of Senior Executive Service (SES) employees, acting SES employees or a person who holds a position at a level equivalent to that of an SES employee. 

5. Cabinet Documents 

The Bill proposes amendments to the section 34 exemption that applies to Cabinet documents. It proposes that a document will be exempt if ‘a substantial purpose for its preparation was submission for consideration by the Cabinet’. This will effectively broaden the amount of material covered by the exemption.  

As discussed in the Explanatory Memorandum, these amendments are being made to ensure that section 34 ‘appropriately protects Cabinet confidentiality and the principle of collective ministerial responsibility (central to the Cabinet system of government)’. 

6. Deliberative processes of Government 

The Bill proposes amendments to the public interest test to be applied to documents that are conditionally exempt under section 47C, on the basis that they concern the deliberative processes of Government. The following factors will weigh against giving access to the conditionally exempt documents:

• disclosure would, or could reasonably be expected to, prejudice the frank or timely discussion of matters or exchange of opinions between participants in deliberative processes of Government for the purposes of consultation or deliberation in the course of, or for the purposes of, those processes;
• disclosure would, or could reasonably be expected to, prejudice the frank or timely provision of advice to or by an agency or Minister, or the consideration of that advice after it is provided; or
• disclosure would, or could reasonably be expected to, prejudice the orderly and effective conduct of a government-decision making process. 

7. Processing Cap

The Bill inserts a new discretion for an agency or Minister to find that a ‘practical refusal reason’ exists if it is clear that the hours required to process an FOI request would be over a ‘processing cap’ (defined as 40 hours in the Bill, or any higher number of hours or work prescribed by the regulations). 

8. Deemed Refusals 

The Bill will require that if a ‘deemed refusal’ occurs in relation to an FOI request, the agency or Minister must still continue to deal with, and make a decision on, the FOI request as if it the decision had not been deemed. 

These changes are being implemented to reduce confusion about whether, if a ‘deemed refusal’ occurs, the decision maker still has the power under the FOI Act to make a decision in relation to the request. 

9. Vexatious or Frivolous Applications 

The Bill provides a new mechanism by which an agency or Minister can refuse to deal with an FOI request if satisfied that a request is:

• vexatious or frivolous;
• likely to have the effect of harassing or intimidating or otherwise causing harm (or a reasonable fear of harm) to another person; or
• an abuse of process. 

Actions for Commonwealth Government Agencies 

The Government intends to refer the Bill to the Senate Standing Committee on Legal and Constitutional Affairs for consideration and further stakeholder engagement. 

Agencies should therefore maintain a ‘watching brief’ on these changes, noting that if they are passed, they will reflect arguably the most significant changes to the FOI regime since its inception in 1982. 

We anticipate that, if implemented, agencies will need to:

• implement practical changes to their current FOI processes, including to incorporate or reflect the new charging regime, adjusted timeframes, and the need to finalise decisions for any deemed refusals;
• consider how to implement the Applicant identification requirements in a manner consistent with the Privacy Act 1988 (Cth) and privacy best practice;
• ensure their FOI templates are updated, including to reflect the changes to the tests for the relevant exemptions; and
• train their FOI team, FOI decision makers, and their personnel more broadly about the changes in the Bill.