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FOI agency resource 12: Defining an agency

The right to obtain access to documents under the Freedom of Information Act 1982 (FOI Act) extends to documents of an ‘agency' and official documents of a minister, other than exempt documents. An ‘agency' is defined in s 4(1) of the FOI Act as:

  • a Department of the Australian Public Service that corresponds to a Department of State of the Commonwealth
  • a ‘prescribed authority'
  • a ‘Norfolk Island authority'.

This chart helps in identifying those bodies and offices that are covered by the FOI Act, and those that are excluded. It is not intended to be a comprehensive summary of the coverage of the FOI Act. A small number of agencies are exempt from the FOI Act (see Schedule 2 Part I). Other agencies are subject to the FOI Act but are exempt in relation to particular types of documents (see Schedule 2 Part II).

To determine whether a particular body or office falls within the definition of ‘agency', you should refer to ss 4-7 and Schedules 1 and 2 of the FOI Act as well as the FOI Guidelines.

FOI Act agencies

Departments of State

All Departments of State (such as the Department of Defence) are subject to the FOI Act.

Bodies established for a public purpose

Bodies established for a public purpose by or under an enactment or an Order in Council (or, in the case of Norfolk Island, by the Administrator or a minister) are subject to the FOI Act.

An unincorporated body (such as a board or committee) established under an enactment to assist or perform functions connected with a prescribed authority or Norfolk Island authority is deemed to be comprised within that prescribed authority or Norfolk Island authority (s 4(2), (3A)).

Exclusions

The general exceptions are set out in s 4(1)–(3) and include:

  • incorporated companies or associations (except NBN Co and prescribed bodies)
  • Royal Commissions
  • Commissions of Inquirywithin the meaning of the Quarantine Act 1908 or the Offshore Petroleum and Greenhouse Gas Storage Act 2006
  • the legislature of the NT, ACT or Norfolk Island.

The bodies listed in Schedule 2, Part I are also excluded (s 7).

Holders of an office established for a public purpose

Holders of an office established under an enactment or an Order in Council (or, in the case of Norfolk Island, by the Administrator or a minister) are subject to the FOI Act.

Exclusions

The following exceptions are set out in s 4(3) and (3B):

  • members of the NT, ACT or Norfolk Island legislature
  • ministers of the NT or ACT, or the Administrator and Deputy Administrator of Norfolk Island
  • an office whose holder performs duties as part of their employment by a Department, a prescribed authority or a Norfolk Island authority
  • an office excluded by regulations
  • an office of member of a body or Norfolk Island authority
  • an office established by an enactment for the purposes of a prescribed authority or a Norfolk Island authority.

Courts

Courts are deemed to be prescribed authorities (or, in the case of Norfolk Island, Norfolk Island authorities), and are subject to the FOI Act only in relation to documents that relate to matters of an administrative nature (s 5).

Prescribed bodies

These bodies are listed in Schedule 1 to the Freedom of Information (Miscellaneous Provisions) Regulations 1982. At 20 April 2012 the only prescribed body was Aboriginal Hostels Limited.

Prescribed office holder

At 20 April 2012 there were no prescribed office holders.

National Broadband Network (NBN Co)

NBN Co is listed in paragraph (aa) of the definition of ‘prescribed authority' in s 4(1).

For further information

telephone: 1300 363 992
email: enquiries@oaic.gov.au
write: GPO Box 5218, Sydney NSW 2001
Or visit our website at www.oaic.gov.au