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Part 2 — Scope of application of the Freedom of Information Act v1.4

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

Version 1.4, March 2014

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, 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 (ss 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)).

2.5 As of June 2013 , s 68A of the Parliamentary Service Act 1999 exempts departments and people holding or performing the duties of an office established under that Act from the definition of a prescribed authority under the FOI Act.[2] In addition, the Parliamentary Budget Office and the Parliamentary Budget Officer are deemed not to be prescribed authorities under s 7(1) and Division 1 of Part I of Schedule 2 of the FOI Act (see paragraph 2.9).

Courts, tribunals and the Office of the Governor-General

2.6 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). [3] 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. In addition, ss 5(1A)–(1C) of the FOI Act provide that the Act does not apply to certain documents of the Federal Court, the Family Court and the Federal Circuit Court of Australia that relate to handling complaints about judicial officers.

2.7 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. The Full Federal Court of Australia has confirmed this distinction: 'In our view the relevant distinction being drawn by s 6A is between the substantive powers and functions of the Governor-General, on the one hand, and the apparatus for the exercise of that power or function, matters merely supportive of that power or function, on the other.'[4]

2.8 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

2.9 Under s 7(1), the following bodies specified in Schedule 2, Part I 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
  • Australian Security Intelligence Organisation
  • Inspector-General of Intelligence and Security
  • National Workplace Relations Consultative Council
  • Office of National Assessments
  • Parliamentary Budget Office
  • Parliamentary Budget Officer.

2.10 Under s 7(1A), the following parts of the Department of Defence specified in Schedule 2, Part I, Division 2 are taken not to be part of the Department of Defence nor agencies in their own right:

  • Defence Imagery and Geospatial Organisation
  • Defence Intelligence Organisation
  • Defence Signals Directorate.

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

2.11 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; [5] 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), NBN Co Ltd and Medicare) in relation to documents in respect of commercial activities. Except when used in relation to NBN Co Ltd, 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)). When used in relation to NBN Co Ltd, the term 'commercial activities' is defined as meaning the current or proposed commercial activities of NBN Co Ltd (s 7(3A)).[6] For a complete list of bodies exempt under s 7(2), see Schedule 2, Part II.

2.12 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.

2.13 All Australian Government agencies and ministers are also exempt from the operation of the Act in relation to documents containing information obtained at a private session before the Child Sexual Abuse Royal Commission, identifying a natural person who appeared at a private session, or containing information summarised or extracted from a private session (s 7(2E)).

Mandatory transfer of requests

2.14 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 2.9 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.

2.15 Similar transfer provisions apply in relation to documents of the type described in paragraph 2.11 above (ss 16(3) and 51C(3)).

Responding to access requests if an exemption applies

2.16 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.

2.17 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.

2.18 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 2.19–2.27), 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

2.19 The right of access to documents extends to the 'official documents of a minister' (s 11(1)(b), 11A). 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 (s 4(1)). A minister includes a parliamentary secretary.[7]

2.20 The first element of this definition is that a document is 'in the possession of a Minister…in his or her capacity as a Minister'. This is to be taken as meaning a document in the possession of a minister's office, and is not confined to a document that is personally held by the minister. For example, under a similar provision in Victoria it has been held that an electronic diary maintained by the Premier's Chief of Staff in providing support functions to the Premier was a document in the Minister's possession.[8]

2.21 'Possession' of a document can also include constructive as well as actual possession: see the discussion in Part 3 of these Guidelines concerning the definition of 'document of an agency'. Section 4(1) further provides that a document is in a minister's possession if the minister is entitled to access a document that has passed from his or her possession, other than a document that has gone into an agency's possession: see the discussion at paragraph 2.31 below concerning documents that a current minister has placed in the care of the National Archives of Australia.

2.22 The second element of the definition is that a document in the minister's possession 'relates to the affairs of an agency'. This phrase is to be understood broadly as encompassing documents that relate to matters within the portfolio responsibility of a minister or the business or activities of an agency.[9] The content of a document and the context in which it was created or held will be important.

2.23 Documents held by a minister that have been found to relate to the affairs of an agency include a work diary of a ministerial adviser;[10] entries in the Prime Minister's appointments diary relating to meetings with other political leaders to discuss the legislative program;[11] a letter to the Prime Minister from a former Prime Minister conveying views on issues of national policy;[12] and a reference written by a minister on official letterhead.[13]

2.24 Documents held by a minister that do not 'relate to the affairs of an agency' include personal documents of a minister or the minister's staff, documents of a party political nature, and documents held in the minister's capacity as a local member of parliament not dealing with the minister's portfolio responsibility.[14] Examples include entries in the Prime Minister's appointments diary relating to meetings with business leaders at the annual national party conference;[15] and a letter to the Prime Minister from an organisation established to provide support to the political party headed by the Prime Minister.[16]

2.25 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 2.31 below).

2.26 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.

2.27 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 of these Guidelines).

Arrangements between a minister and portfolio department

2.28 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.[17]
  • 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

2.29 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.[18] It is desirable that this be done by a written instrument of authorisation or under an arrangement in writing approved by the minister. In these circumstances, the authorised person makes a decision on behalf of the minister in the capacity of an agent rather than in their own right as an authorised person.

2.30 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

2.31 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

2.32 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'. 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.

2.33 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.

2.34 In summary, in relation to contracts entered into on or after 1 November 2010, the FOI Act confers a right of access 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.

2.35 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.

2.36 The Information Commissioner has published an agency resource containing guidance material about s 6C and a model clause that agencies can include in relevant contracts. The model clause is available at www.oaic.gov.au.

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Footnotes

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

[2] The Minister's second reading speech for the amending legislation to the Parliamentary Service Act 1999 in May 2013 noted that these amendments are intended to be an interim measure pending consideration of recommendations about this matter arising from the review of the FOI Act undertaken by Dr Allan Hawke AC in 2012–13. The report of the review was tabled on 2 August 2013.

[3] The Fair Work Commissioner (previously 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.

[4] Kline v Official Secretary to the Governor-General [2012] FCAFC 184 [21], on appeal from Kline and Official Secretary to the Governor-General [2012] AATA 247, which was an appeal from 'B' and Office of the Official Secretary to the Governor-General [2011] AICmr 6.

[5] For examples of the application of this exemption and the meaning of 'program material', see Australian Broadcasting Corporation and Herald and Weekly Times Pty Limited and Anor [2012] AATA 914 on appeal from Herald and Weekly Times Pty Ltd and Australian Broadcasting Corporation [2012] AICmr 7 and 'F' and Australian Broadcasting Corporation [2012] AICmr 8.

[6] See Internode Pty Ltd and NBN Co Ltd [2012] AICmr 4 and Battersby and NBN Co Ltd [2013] AICmr 61.

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

[8] Office of the Premier v Herald and Weekly Times [2013] VSCA [65]–[66].

[9] Fletcher and Prime Minister of Australia [2013] AICmr 11 [20], Office of the Premier v Herald and Weekly Times [2013] VSCA 79 [79].

[10] Office of the Premier v Herald and Weekly Times [2013] VSCA 79.

[11] Fletcher and Prime Minister of Australia [2013] AICmr 11.

[12] Parnell and Department of the Prime Minister and Cabinet [2012] AICmr 31.

[13] Parnell and Minister for Infrastructure and Transport [2011] AICmr 3 [14].

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

[15] Parnell and Prime Minister of Australia (No. 2) [2011] AICmr 12.

[16] Parnell and Prime Minister of Australia [2011] AICmr 10.

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

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

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