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Freedom of Information Act 1982 - Part III - Disclosure Log Determination No 1 - exempt documents

(draft for consultation)

Effective: (dates will be inserted later)

I, John McMillan, Australian Information Commissioner, make this determination under section 11C(2) of the Freedom of Information Act 1982 (the Act).

(1) Information referred to in sub-paragraph (a) or (b) to which an agency or Minister has given access to an applicant under section 11A of the Act is prescribed for the purposes of section 11C(1)(c) of the Act:

(a) information in a document that was an exempt document at the time that access was given by the agency or Minister to the applicant;

(b) information in a document that the agency or Minister would have decided was an exempt document at the time that access was given to the applicant, if the request for that document had been received from a person other than the applicant.

(2) In this determination agency, applicant and exempt document have the same meaning as in section 4 of the Act.

(3) This determination will remain in force for two years from the date of commencement.

Dated:

 

Professor John McMillan
Australian Information Commissioner


Freedom of Information Act 1982

Disclosure Log Determination No 1

Explanatory Statement

 

1. PURPOSE AND AUTHORITY

1.1 Explanatory statement

This explanatory statement has been prepared by the Australian Information Commissioner. It explains the scope and intended operation of Disclosure Log Determination No 1 made under s 11C(2) of the Freedom of Information Act 1982 (Cth) (the Act).

1.2 Purpose

Section 11C(3) of the Act requires agencies and Ministers to publish information that has been released in response to each freedom of information access request on their websites subject to certain exceptions. This publication is known as a ‘disclosure log'.

The disclosure log requirement does not apply to:

  • personal information about any person, if it would be ‘unreasonable' to publish the information (s 11C(1)(a))
  • information about the business, commercial, financial or professional affairs of any person, if publication of that information would be ‘unreasonable' (s 11C(1)(b))
  • other information of a kind determined by the Information Commissioner if publication of that information would be ‘unreasonable' (s 11C(1)(c))
  • any information if it is not reasonably practicable to publish the information because of the extent of modifications that would need to be made to delete information listed in one of the above dot points (s 11C(1)(d)).

The purpose of Determination No 1 is for the Commissioner to prescribe for the purposes of s 11C(1)(c), information referred to in paragraph (a) or (b) to which an agency or Minister has given access to an applicant under s 11A of the Act:

a) information in a document that was an exempt document at the time that access was given by the agency or Minister to the applicant

b) information in a document that the agency or Minister would have decided was an exempt document at the time that access was given to the applicant, if the request for that document had been received from a person other than the applicant.

2. REASONS FOR MAKING THE DETERMINATION

The Act gives every person a legally enforceable right to obtain access to documents of an agency and official documents of a Minister other than exempt documents (s 11). The phrase ‘exempt document' is defined in ss 4 and 31B as meaning:

  • a document that is exempt under Part IV Division 2
  • a document that is conditionally exempt under Part IV Division 3, if access to the document at that time would, on balance, be contrary to the public interest
  • a document in respect of which an agency, person or body is exempt from the operation of the Act under s 7, and
  • an official document of a Minister that contains some matter that does not relate to the affairs of an agency or Department.

The Act does not limit an agency's or minister's power to give access to information or a document that is exempt under the Act (s 3A).

Paragraph 1(a) of Determination No 1 relieves an agency or Minister of any obligation to publish in a disclosure log an exempt document that has been released to an applicant. The agency or Minister may decide that it is appropriate to provide access to the particular applicant but not to publish the document more widely. For example, the document may have been released to the particular applicant in connection with a research project, in connection with legal proceedings in which the applicant is involved, or because the confidential nature or commercial value of information in a document would not be jeopardised by selective release.

Paragraph 1(b) of Determination No 1 recognises that the exempt status of a document can depend on the identity of the applicant. For example, it would not be an unreasonable disclosure of personal information or contrary to the public interest to release to a person a document that relates specifically and only to them (s 47F). However, it may be an unreasonable disclosure or contrary to the public interest to release that document to another person. The identity of the applicant is similarly relevant in applying the conditional exemption for business affairs (s 47G).

3. OPERATION

This determination will remain in force for a period of 2 years from the date of commencement.

The disclosure log provisions in the Act, including the determination mechanism in s 11C(2) came into effect on  1 May 2011. At the time of making this determination these provisions include requirements and procedures that are new and have not been tested. The operation and effect of this determination will require review in 2 years.

4. DEFINITIONS

In this determination:

a) agency, applicant and exempt document have the same meaning as in section 4 of the Act;

b) disclosure log means the publication under s 11C of information that has been released to an applicant under the Act.

5. CONSULTATION

(This paragraph will be inserted after the consultation period)