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Renewal of Disclosure Log Determination No. 2011-1 (Exempt Documents)

This consultation closed on 3 October 2013. Read the submissions.

Consultation information — September 2013

On 27 September 2011, the Information Commissioner made Disclosure Log Determination No. 2011-1 (Exempt Documents) under s 11C(2) of the Freedom of Information Act 1982 (FOI Act). The determination came into force on 17 October 2011 for a period of 2 years. The determination and explanatory statement can be accessed here:

On 16 October 2013, the determination will expire. The Information Commissioner is preparing to reissue the determination, and invites feedback from stakeholders and the community on its operation and effectiveness. Your feedback will be taken into account as we assess whether the determination should be reissued and whether it should be changed in any way.

About the determination

Under s 11C of the FOI Act, agencies and Ministers must publish documents released in response to an FOI request on their online disclosure logs, subject to some exceptions.

Wider publication of documents online may not always be appropriate and the FOI Act allows the Information Commissioner to determine that agencies and Ministers do not have to publish a specific kind of information to their disclosure log, where publication would be unreasonable (s 11C(1)(c)).

Paragraph 1 of the Information Commissioner's Disclosure Log Determination No. 2011-1 (Exempt Documents) states that agencies and Ministers do not have to publish on their disclosure logs:

  1. information in a document that was an exempt document at the time that access was given by the agency or Minister to the applicant
  2. 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.

The purpose of the determination

The effect of paragraph 1(a) is that an agency or Minister may decide that it is appropriate to provide access to the particular applicant but it would be unreasonable to publish the document more widely. For example, an agency may have released an exempt document to a particular applicant in connection with a research project, in connection with legal proceedings in which the applicant is involved, or because the confidential nature of information in a document would not be jeopardised by selective release. In these circumstances, under paragraph 1(a), the agency may decide that it is unreasonable to publish this information more widely in a disclosure log.

Paragraph 1(b) of Determination No. 2011-1 recognises that the exempt status of a document can depend on the identity of the applicant. That is, a document may not be an exempt document when it is released to a particular applicant, but would be an exempt document if another person sought access to it.

For example, the FOI Act provides that an exemption may be claimed for documents to which secrecy provisions in other enactments apply. Circumstances may arise where a secrecy provision allows release of a document to a particular recipient, but would prohibit its release to a different recipient. This would establish the conditions for the operation of paragraph 1(b) because the document may be an exempt document if requested by someone other than a particular FOI applicant. In this case, an agency or Minister may choose not to publish the document on their disclosure log if it would be unreasonable to do so.

Consultation questions

The OAIC invites you to respond to all or some of the following questions.

  1. Do you think the determination has been effective? If not, how could it be made more effective?
  2. Do you think the determination had any unintended consequences? Is there a way to mitigate those consequences?
  3. Should the determination be expanded or narrowed in any way? Please explain how and why you think it should be expanded or narrowed.
  4. [For agencies and ministers] Have you had regard to the determination when publishing or deciding not to publish documents to your disclosure log? How often has the determination been relevant to your publication decisions?
  5. [For agencies and ministers] The OAIC Annual Report 2012-13, Chapter 8, will include statistics collected from agencies and ministers on disclosure log activity, for example, the number of documents accessible from disclosure logs, and the number of website visits to disclosure logs. The OAIC invites agencies and ministers, as part of this consultation, to comment on their disclosure log record keeping – for example, is an internal register maintained of all disclosure log decisions, does the agency record decisions not to publish a document on the disclosure log and the reasons for that decision, should additional information about disclosure log activity be collected by the OAIC? There is a discussion of these issues in paragraphs [14.67-71] of the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act.
  6. Please provide any other comments you have about the determination.

How to provide comments

Submissions can be made by:

Email: consultation@oaic.gov.au

Post: GPO Box 2999 Canberra ACT 2601.

Electronic lodgement of submissions is preferred. The closing date for comments is Thursday, 3 October 2013.

Note: The OAIC intends to make all submissions publicly available. Please indicate when making your submission if your submission contains confidential information which you do not wish to make public. Requests for access to confidential comments will be determined in accordance with the FOI Act.
To assist the OAIC to meet its obligations with respect to accessibility requirements, we request that emailed submissions be made in HTML, Rich Text Format (.rtf) or Microsoft Word (.doc or .docx) format.

Privacy collection statement

The OAIC will only use the personal information it collects during this consultation for the purpose of reviewing the operation of the disclosure log provisions in the FOI Act and revising Disclosure Log Determination No. 2011-1 (Exempt Documents).

Submissions received