Hey Chat GPT: Can I use AI to make or process a Freedom of Information request?

Last week, the Freedom of Information Amendment Bill 2025 (Cth) (Bill) was introduced into the House of Representatives. If passed by Parliament, the Freedom of Information Act 1982 (Cth) (FOI Act) will be amended to “modernise the requirements for Freedom of Information requests.”[1]

AI has already been implemented in the public sector, including across multiple Australian Government agencies.[2] Curiously, the Bill is silent on the use of AI systems to make or process freedom of information (FOI) requests. It also does not address some of the complexities which may arise from processing FOI requests where AI might have been involved as part of the underlying decision or government action.

In this insight, we consider some of the opportunities and challenges associated with:

1. AI autonomously making FOI requests under the FOI Act;
2. agencies processing FOI requests where AI has been utilised as part of the underlying decision making or government function; and
3. agencies using AI to process FOI requests.

The Bill does not engage with any of these issues, leaving how AI will be considered and treated for FOI purposes an open question.        

Can AI itself make an FOI request?

It is conceivable that an AI system could be trained to itself make an FOI request, particularly as currently FOI applicants are not usually identified,[3] and a person’s right of access is not affected by any reasons for seeking access.[4]

To make a valid FOI request, the request must satisfy the requirements set out in s 15(2) of the FOI Act, extracted below:

Requirements for request

 (2)  The request must:

(a)  be in writing; and

(aa) state that the request is an application for the purposes of this Act; and

(b)  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

(c)  give details of how notices under this Act may be sent to the applicant (for example, by providing an electronic address to which notices may be sent by electronic communication).

 (2A)  The request must be sent to the agency or Minister…

If the Bill passes, a request may also need to be accompanied by a fee, with the amount to be prescribed by regulations.[5]

Importantly, the Bill provides that FOI requests can no longer be made anonymously or under a pseudonym, and that a person must declare when making an FOI request on behalf of a third party.[6] Practically, this would likely mean that an AI system can be used to make a request, but “persons” (discussed below) would need to lodge the request.

The better view for the current compilation of the FOI Act is that AI cannot itself make a valid FOI request as AI is not a “person” – although of course, AI could be used by a natural person to make an FOI request (for example, by drafting categories of documents sought).

Under the FOI Act, only “persons may request access”.[7] “Persons” is not expressly defined in the FOI Act. However, under the Acts Interpretation Act 1901 (Cth), references to “persons” (such as “person”, “party”, “someone”, “anyone”) includes a body politic or corporate, as well as an individual.[8]

That only a natural person, body politic or body corporate can make an FOI request is also implied by the current (April 2025) version of the FOI Guidelines published by the Australian Information Commissioner (Guidelines). The Guidelines state at [3.34] (footnotes omitted):

Any person has the right to apply for access to a document of an agency or an official document of a minister (s 11(1)). An applicant does not have to reside in Australia or be an Australian citizen. The term ‘person’ also includes a body politic or body corporate, such as a company.

While this issue does not appear to have been tested in the context of FOI, the common law is developing more generally. For example, in Commissioner of Patents (Cth) v Thaler, the Full Federal Court considered on appeal whether an AI system (DABUS), an invention autonomously generated by AI, could be an “inventor” for the purposes of being granted patent rights.[9] The Full Federal Court held that DABUS was not a natural person and could not therefore be an “inventor” pursuant to the relevant statutory framework.[10]

As a practical matter, unless the FOI Act is amended or an agency requests that the use of AI is disclosed when making a request (for example, as a field in an application form), it may be difficult to identify when a request has been generated using AI.

Processing FOI requests where AI can, or has been, utilised

There are also a number of considerations relevant to agencies processing FOI requests where AI can, or has been, utilised as part of the underlying decision or government action and those materials are prima facie captured within the scope of the request. One such consideration is whether data or information generated by AI is a “document” for the purposes of the FOI Act.

Under the FOI Act, a “document” is broadly defined, but includes any article on which information has been stored or recorded, either mechanically or electronically, as well as any other record of information.[11] The FOI Act and the Guidelines do not expressly consider whether AI-generated information, nor the underlying algorithm used to generate the information, would come within this inclusive definition of “document” for the purpose of the FOI Act. Notably, there is no requirement in the FOI Act for a document to have been created by a “person” and this is not addressed in the Bill. As such, and while noting this does not appear to have been tested, AI-generated information seems likely to be considered an article on which information has been stored or recorded, either mechanically or electronically, for the purpose of the FOI Act.

This interpretation is supported by case law in other jurisdictions which suggests that there should be no delineation between human and AI-generated materials with respect to their status as documents. For example, in DPP v Khan, the Supreme Court of the Australian Capital Territory referred to AI-generated character references as “documents”, but there was no detailed commentary on whether and why AI-generated material constitutes a document.[12]

Whether the underlying algorithm used to generate the information will be similarly caught is a trickier question. This will likely depend on the algorithm’s content and, as always, the drafting of the scope of the request. For example, if an FOI request seeks access to all documents which use a specific term, this could conceivably include an AI algorithm which uses that term, if the algorithm is considered to be a document. We expect guidance will be required to clarify the position either through further legislative amendment, or through decisions made by the Information Commissioner, Administrative Review Tribunal or Courts.

There is also the issue of whether information generated by AI is “held” by the relevant agency or Minister. Depending on which AI platform is used, the information could be available to an agency or Minister but “held”, for example, in a cloud-based platform that is managed by a third party. It is clear that holding a document includes actual possession as well as constructive possession (where the agency or Minister has the right and power to deal with a document regardless of whether and by whom it is stored),[13] but how far constructive possession could extend in relation to AI-generated information is presently an open question. Documentation generated and held by an agency seems more likely to be captured, but again, the status of the underlying algorithms is less clear. This may be addressed by future legislative amendment or evolving case law.

Using AI to process FOI requests

One exciting opportunity is the scope for AI to generate significant efficiencies for agencies and Ministers processing FOI requests. United States-based government agencies have been testing the use of AI to process FOI requests since at least mid-2023,[14] and there appears to be real potential to utilise AI to:

• perform keyword searches across multiple systems to identify documents within scope;
• summarise the characteristics of documents within the scope of a request. For example, identifying the author of a document or if it contains personal or business information, to then promptly undertake third party consultation; and
• identify categories of information that may fall within the scope of an FOI Act exemption. Care must be taken noting the “pro disclosure” obligations of the FOI Act.

The Bill does not amend the FOI Act to make it clear that a “decision” about release and the application of any exemptions could be made by a computer system, or that a decision maker can be assisted by an AI system in undertaking their statutory functions. It is not clear whether this was a deliberate decision to keep this type of administrative action in the hands of human decision makers given the levels of judgment that are often required, or whether this was a missed opportunity to open the door for more efficient processing.

Contact KWM

KWM’s specialist administrative law and information law team is available to assist, including delivering training and developments in AI and FOI as they emerge.