The caretaker period - what it means for FOI requests

With the announcement of the 2025 Federal Election, the Australian Government enters what is known as a ‘caretaker period’. Effectively, this means that most significant decisions (such as entering of major policy decisions or contracts, or the appointment of key government roles) are deferred until the result of the election are finalised.

During the caretaker period, government departments and agencies adopt caretaker conventions; important, well-established guidelines, providing commentary and advice on how departments and agencies can maintain appropriate decision-making. You can read the official Guidance on Caretake Conventions here: Guidance on Caretaker Conventions.

The caretaker period has considerable impact on government operations. A common question that Freedom of Information (FOI) decision makers may ask themselves during the caretaker period is, “do I continue to process FOI requests?” The short answer is, yes—the caretaker period does not stop the FOI clock!

FOI during the caretaker period

In respect of the FOI process during the caretaker period, it is business as usual.

The caretaker conventions are not enacted law, and accordingly the Freedom of Information Act 1982 (Cth) (FOI Act) remains the legislative instrument governing FOI decision-making. During the caretaker period, FOI requests should continue to be processed, and FOI decisions should continue to be made, and done so in accordance with standard legislative requirements.

However, the practical implications of caretaker conventions on FOI processing may need to be considered by FOI decision makers during this period. For example, if business areas who are tasked with search and retrieval exercises are now experiencing an increased workload, extensions of time may be required to accommodate this. Alternatively, if a Minister needs to be briefed about an FOI decision prior to that decision being made, the FOI processing period may need adjustments to allow for the Minister’s campaign schedule and commitments and extensions of time (EOTs) may be required.

Key takeaways

We’ve put together some practical FOI tips to assist agencies in navigating this period:

• Closer attention should be paid to communication with FOI applicants during this period. The caretaker period can often result in increased workloads for departments and agencies, and it is important that FOI officers make applicants aware that FOI processing times may be impacted. If an EOT is required, be upfront about this and request an EOT under s 15AA of the FOI Act in the first instance. Requests for EOT should always be made as early in the request period as possible don’t leave it until the last day!
• We also encourage agencies to work closely with your relevant business areas to ensure that they are aware that the usual FOI obligations and processing expectations remain. If as noted above the caretaker period is going to impact the efficiency of a search and retrieval, or decision making process, then EOTs should be considered under ss 15AA or 15AB of the FOI Act, as this will avoid decisions deeming pursuant to s 15AC of the FOI Act.
• Please note that Office of the Australian Information Commissioner (OAIC) and the Administrative Review Tribunal (ART) continues to operate during the caretaker period and as such will progress existing and new review applications. If your ability to comply with evidence or submission deadlines is going to be impacted by the caretaker period, this should be raised with the relevant review body as a matter if priority.
• If you are currently working on a request for documents of a minister, take some time now to consider what needs to occur if there is a change in office following the upcoming election. Remember, a change in Office cannot frustrate an applicant’s right to have their FOI request finalised. So, steps need to be taken now to ensure that all relevant documents and records subject to FOI requests remain readily available. If you have matters before the OAIC or ART, you should also consider whether a change in office will have an effect on your ability to provide supporting evidence (i.e., affidavits) in such matters. You can read our recent case note on the decision of Geoffrey Shafran and Minister for Veterans' Affairs and Defence Personnel (Freedom of information) [2025] AICmr 46 (4 March 2025), and you should also closely review the Information Commissioner’s recent amendments to Part 2 of the FOI Guidelines, which have been updated to reflect the recent Federal Court and Federal Court of Appeal Decisions in Patrick v Attorney-General (Cth) [2024] FCA 268 and subsequently in Attorney-General (Cth) v Patrick [2024] FCAFC 126.
• An accepted convention by government, is that ‘ministers do not seek access to documents recording the deliberations of ministers in previous governments’ (see page 13 of the Guidance on Caretaker Conventions), as those documents are considered confidential to the government that created them. However, this doesn’t prevent requests being made under the FOI Act for these documents. If you have any current matters (or receive new matters) seeking access to cabinet documents during this period, ensure that you are prioritising the processing of these matters, as the caretake period may impact search and retrieval timeframes, and the efficiency of obtaining relevant supporting evidence required to consider the application of s 24 of the FOI Act (the Cabinet Exemption).