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Part 2 — Scope of application of the Freedom of Information Act

Archived Document — This document is no longer in use. Read the current FOI guidelines.

(original), December 2010

2.1 Section 11(1) of the FOI Act gives every person a legally enforceable right to obtain access to a document of an agency or an official document of a minister, unless the document is exempt.

Agencies subject to the FOI Act

2.2 As a general rule, an Australian Government agency will be subject to the FOI Act unless expressly provided otherwise. ‘Agency’ is defined as:

  • a department of the Australian Public Service (the Act does not apply to the departments of the Parliament), or
  • a prescribed authority (s 4(1)).

Prescribed authority

2.3 A prescribed authority is defined at s 4(1) of the FOI Act to mean:

  • a body corporate, or an unincorporated body, established for a public purpose by, or in accordance with the provisions of, an enactment or an Order in Council
  • any other body, incorporated or unincorporated, that has been declared by the FOI Regulations to be a prescribed authority for the purposes of the FOI Act
  • a person holding an office or appointment under an enactment or Order in Council or that is prescribed in the regulations.

2.4 Some bodies, offices and appointments are expressly excluded from that definition of prescribed authority, and hence from the coverage of the FOI Act (s 4(1),(3)). They include: an incorporated company or association; Territory Legislatures, and the officers and members of the Territory legislature; Royal Commissions; the Commission of inquiry under the Quarantine Act 1908;[1] and offices prescribed in the regulations. Unincorporated bodies such as boards, councils and committees that have been established to assist or perform functions connected with a prescribed authority are deemed to be within that prescribed authority (s 4(2)). Similarly, an office that has been established by an enactment to perform duties as an employee of a department, a member of a body or for the purposes of a prescribed authority, are not separately treated as a prescribed authority (s 4(3)).

Courts, tribunals and the Office of the Governor-General

2.5 The FOI Act has a restricted application to courts, the Australian Industrial Relations Commission, the Australian Fair Pay Commission, and the Industrial Registrar and Deputy Industrial Registrars (ss 5, 6).[2] Specifically, the Act only applies in respect of those bodies to requests for access to documents that relate to ‘matters of an administrative nature’, a phrase that is not defined in the Act. It is implicit in that phrase that the Act does not apply to documents that relate to the judicial or adjudicative functions of those bodies. For example, the FOI Act does not apply to documents relating to the proceedings or decision of a court, nor to the exercise of the court’s judicial functions by an officer such as the registrar.

2.6 The FOI Act provides in similar terms that it only applies to the Official Secretary to the Governor-General in respect of requests for access to documents that relate to ‘matters of an administrative nature’ (s 6A). Implicitly, the Act does not apply to requests for access to documents that relate to the Governor-General’s discharge of official functions conferred by the Constitution or an enactment.

2.7 There is no similar exclusion from the Act applying to tribunals, such as the AAT, Migration Review Tribunal, Refugee Review Tribunal, Social Security Appeals Tribunal and Veterans’ Review Board. The Act applies to those tribunals in the same manner as it applies to other agencies.

Exemption of certain persons and bodies

2.8 Sections 7(1) and 7(1A) (supplemented by Schedule 2, Part 1) designate other bodies that are not agencies for the purposes of the FOI Act:

  • Aboriginal Land Councils and Land Trusts
  • Auditor-General
  • Australian Government Solicitor
  • Australian Industry Development Corporation
  • Australian Secret Intelligence Service (ASIS)
  • Australian Security Intelligence Organisation (ASIO)
  • Inspector-General of Intelligence and Security (IGIS)
  • National Workplace Relations Consultative Council
  • Office of National Assessments (ONA)

and the following defence intelligence agencies:

  • Defence Imagery and Geospatial Organisation (DIGO)
  • Defence Intelligence Organisation (DIO)
  • Defence Signals Directorate (DSD).

Exemptions applying to commercial activities, security and defence intelligence documents, and other matters

2.9 Section 7(2) (supplemented by Schedule 2, Part II) lists agencies that are exempt from the operation of the FOI Act in relation to particular types of documents. The list includes: the Australian Broadcasting Corporation and Special Broadcasting Service in relation to program material and datacasting content; the Reserve Bank of Australia in relation to its banking operations and exchange control matters; the Australian Statistician, in relation to documents containing information collected under the Census and Statistics Act 1905; and various bodies (such as Australia Post, Comcare, Commonwealth Scientific and Industrial Research Organisation (CSIRO) and Medicare) in relation to documents in respect of commercial activities. The term ‘commercial activities’ is defined as meaning the current or proposed commercial activities of a body that are carried on in competition with persons other than government agencies (s 7(3)). For a complete list of bodies exempt under s 7(2), see Schedule 2, Part II, of the FOI Act.

2.10 All Australian Government agencies are exempt from the operation of the Act in relation to 'intelligence agency documents' (for example, a document that originated with or was received from ASIO or ONA) (s 7(2A)) and 'defence intelligence documents' (for example, a document that originated with or was received from the Department of Defence and relates to the collection, reporting or analysis of operational intelligence (s 7(2C)). These exemptions also apply to documents in the possession of ministers (s 7(2B)). The exemption extends to a part of a document that contains an extract from or a summary of an intelligence agency document or a defence intelligence document. The remainder of the document is not exempt on the same basis, and access may have to be given after deletion of the exempt material under s 22.

Mandatory transfer of requests

2.11 Certain FOI requests must be transferred to another agency. Where an agency or a minister receives a request for access to a document which:

  • originated with or was received from an exempt agency or body listed in paragraph 2.8 above, and
  • is more closely connected with the functions of that exempt agency or body than with those of the agency receiving the request

the request must be transferred to the portfolio department responsible for the exempt agency or body (s 16(2)). There is a similar provision in s 51C(2) concerning requests for amendment or annotation of personal records under s 48.

2.12 Similar transfer provisions apply in relation to documents of the type described in paragraph 2.9 above (ss 16(3) and 51C(3)).

Responding to access requests if an exemption applies

2.13 Where an agency is exempt in whole from the FOI Act because of s 7, it is not obliged to respond to requests for access to documents or amendment or annotation of personal records. It is nevertheless good administrative practice for an exempt agency to reply to an applicant stating that the agency is not subject to the FOI Act. Equally, it may be open to the agency, independently of the FOI Act, to grant access to a document if there is no secrecy provision that prohibits this.

2.14 A different response may be required where an agency that is exempt only as to particular types of documents receives a request relating to those documents. The applicant may dispute the agency’s view that the documents are of an exempt nature – for example, that the documents relate to the agency’s commercial activities, or do not relate to matters of an administrative nature in a court. It is open to the applicant to seek review of the agency decision by the Information Commissioner. To facilitate that process, the agency should observe the procedures of the FOI Act in responding to the applicant. For example, the agency should respond to the applicant in writing within the timeframe the Act stipulates.

2.15 The procedure outlined in the previous paragraph should also be followed in other circumstances where an agency or minister who is subject to the FOI Act receives a request for documents to which the Act may not apply. For example, the procedure should be followed if a minister receives a request for documents that in the minister’s view are not ‘official documents of a minister’ (discussed below at paragraphs 2.16–2.20), or if the National Library of Australia or similar agency receives a request for documents that are regarded as being part of a library, historical or museum collection.

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Ministers

2.16 The right of access to documents extends to the ‘official documents of a minister’ (s 11(1)(b), 11A). A minister includes a parliamentary secretary.[3]

2.17 An ‘official document of a minister’ means a document in a minister’s possession in their capacity as a minister, being a document that relates to the affairs of an agency or Department of State (s 4(1)). The term does not extend to the personal documents of a minister or the minister’s staff, documents of a party political nature, or documents held in the minister’s capacity as a local member of parliament unless the correspondence concerns an agency within the minister’s portfolio.[4]

2.18 The application of the FOI Act to documents ‘in the possession of a minister’ excludes by implication documents held by a former minister or parliamentary secretary. Those documents may, however, be available under the Archives Act 1983 (see paragraph 2.24 below).

2.19 If a minister received and returned a document, such as a briefing, from a portfolio department, the document is a document of the department and not an official document of the minister. However, a copy of such a document retained by the minister is an official document of the minister.

2.20 The provisions of the FOI Act relating to the amendment and annotation of personal records apply also to the official documents of ministers (s 48). That is, a person may apply to a minister to amend or annotate an official document that is claimed to contain incomplete or incorrect personal information about the person making the request (see Part 7).

Arrangements between a minister and portfolio department

2.21 A minister is independent of the portfolio department for the purposes of the FOI Act, and is therefore responsible for processing FOI requests received by the minister. It is nevertheless open to a minister’s office to arrange with a portfolio department to provide assistance in processing FOI requests, on matters such as the following:

  • Searching shared resources: upon receiving an FOI request, a minister’s office is responsible for conducting a search of the documents it holds, but can arrange with a portfolio department to undertake a search of shared resources such as a ministerial correspondence register.
  • Transfer of requests: a minister may transfer a request to a portfolio department, with the department’s agreement, when s 16 applies (document held by the department (s 16(1)(a)); or the subject matter of the document is more closely connected with the department’s functions (s 16(1)(b))). It may assist the efficient processing of requests, including complying with the 30 day time limit under the FOI Act, for transfer arrangements to be spelt out. A minister’s office must be satisfied that it does not hold the requested documents and that if it does, the documents are more closely connected with the department’s functions before deciding to transfer a request to another agency or minister.[5]
  • Reporting: a minister is required by s 93 of the FOI Act to provide information to the Information Commissioner for the purposes of the Commissioner’s reporting functions. A minister’s office may obtain assistance from a portfolio department in meeting this requirement.

Decision making in the minister’s office

2.22 There is no express power in the FOI Act for a minister to authorise another person to make a decision on an FOI request received by the minister (whereas s 23 provides that an FOI request to an agency, court or tribunal can be decided by an authorised person). The Information Commissioner’s view is that it is nevertheless open to a minister to authorise senior members of the minister’s staff to make such decisions.[6] It is desirable that this be done by a written instrument of authorisation or under an arrangement in writing approved by the minister.

2.23 If the Information Commissioner is asked to review a decision made by a member of the minister’s staff, the Commissioner will ordinarily require the minister to confirm whether the minister agrees with the decision that is to be reviewed.

Archived ministerial documents

2.24 A document that a current or former minister has placed in the care of the National Archives of Australia is not a document of an agency (s 13(1)). Access to archived documents is governed principally by the Archives Act. Access will be available under the FOI Act only in two situations. The first is where an agency also has a copy of a document placed by a minister in the National Archives. The second could arise under s 4(1) of the FOI Act, which provides that an official document of a minister includes a document that has passed from the minister’s control ‘if he or she is entitled to access to the document and the document is not a document of an agency’. Neither the FOI Act nor the Archives Act expressly provides that a current minister has a right of access to a document the minister has transferred to the National Archives. However, the National Archives has not identified any prohibition in the Archives Act that prevents access by a current minister to such documents, and it is the practice of the National Archives to give a current minister access when requested.

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Documents held by Commonwealth contractors

2.25 A person may make a request to an agency for access to a document held by a contractor or subcontractor relating to the performance of a ‘Commonwealth contract’ entered into on or after 1 November 2010. These documents are included in the definition of ‘document of an agency’ (s 4(1)) where the agency has taken contractual measures in accordance with s 6C.

2.26 Agencies are required by s 6C to ensure that Commonwealth contracts entered into on or after 1 November 2010 contain contractual measures that enable the agency to obtain any document for which an FOI access request is received. The term ‘Commonwealth contract’ is defined in s 4(1) to mean a contract:

  • to which the Commonwealth or an agency is or was a party
  • where services are or were to be provided under the contract on behalf of an agency to a person who is not the Commonwealth or an agency, and
  • the services are in connection with the performance of the agency’s functions or the exercise of its powers.

2.27 In summary, the FOI Act confers a right of access on or after 1 November 2010 to documents held or created by a contractor or subcontractor relating to their provision of services on an agency’s behalf to the public or a third party. If an agency receives a request for access to such a document, the agency is to take action to obtain a copy of the document from the contractor or subcontractor, and then decide whether access is to be given to that document under the FOI Act.

2.28 A person who has been given access to a document of this kind may make a request to the agency under s 48 to amend or annotate personal information contained in the document about that person. However, s 48 applies only if the personal information ‘has been used, is being used or is available for use by the agency or Minister for an administrative purpose’. This requirement would not be satisfied by reason only that the agency has a right to obtain the document from the contractor under a contract to which s 6C applies.

2.29 The Information Commissioner has published guidance material and a model clause that agencies can include in relevant contracts that they enter into after 1 November 2010. The model clause is available at www.oaic.gov.au.

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Application of the 2010 reforms to requests received before 1 November 2010

2.30 The following principles apply to FOI requests received prior to 1 November 2010:

  • An FOI request received by an agency or minister under s 15 of the FOI Act on or before 31 October 2010 is to be administered in accordance with the provisions in operation on that date, and not in accordance with the Act as amended on 1 November 2010. The same principle applies to applications for amendment and annotation of personal records (s 48).
  • An application for review of a decision of an agency or minister, in respect of an FOI request received on or before 31 October 2010, is to be made in accordance with the Act as in operation on that date. That is, a person may request internal review (s 54 of the FOI Act prior to the 2010 amendments), followed by an application for review by the AAT (s 55 of the FOI Act prior to the 2010 amendments). A person cannot seek review by the Information Commissioner, even if the decision of the agency or minister was made on or after 1 November 2010.
  • A person may complain to the Information Commissioner under Part VIIB of the FOI Act as amended on 1 November 2010, about any action taken by an agency under the Act before, on or after 1 November 2010, except where the Commonwealth Ombudsman is investigating the matter (see Part 11).

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Footnotes

[1] The Commission of inquiry into the equine influenza outbreak.

[2] Fair Work Australia has assumed the functions of the Australian Industrial Relations Commission and some of the responsibilities of the Australian Fair Pay Commission, which ceased operations on 31 July 2009.

[3] Parliamentary secretaries, like ministers, are appointed under s 64 of the Constitution and have the same responsibilities and obligations under the FOI Act.

[4] Re Michael Nassib Said and John Dawkins, MP [1993] AATA 9.

[5] Bienstein v Attorney-General [2007] FCA 1174 (8 August 2007).

[6] See Carltona Ltd v Commissioners of Works [1943] 2 All ER 560.

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