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FOI agency resource 15: personal and business information — third party review rights

Introduction

A third party may have a right to be consulted by an agency before it decides to grant access under the Freedom of Information Act 1982 (FOI Act) to a document containing their personal or business information. The third party may also have a right to seek internal or Information Commissioner (IC) review of a decision to grant access, or to be a party to IC review proceedings commenced by an FOI applicant who was refused access.

Section 27A of the FOI Act requires an agency to consult a person before deciding to grant access to a document containing their personal information, if the person may wish to contend that the document is conditionally exempt under s 47F (personal privacy) and giving access would on balance be contrary to the public interest. A third party consulted under s 27A can contend only that access should be refused under s 47F.

Section 27 of the FOI Act requires an agency to consult a person, organisation or undertaking before deciding to grant access to a document containing their business information, if the third party may wish to contend that the document is exempt under s 47 (trade secrets and commercially valuable information) or conditionally exempt under s 47G (disclosure would unreasonably affect the person’s business affairs or prejudice the supply of information, and would be contrary to the public interest). A third party consulted under s 27 can contend that access should be refused under either s 47 or s 47G, even if the agency consultation was directed to one only of those provisions.

A third party who contends during the consultation process that access should be refused has the right to seek internal or IC review of any subsequent agency decision to grant access.

If the agency decides after consultation to refuse access, the third party must be informed of any later agency decision to grant access, and of any application by the FOI applicant for IC review of an access refusal decision.

A third party who was not consulted at the primary decision-making stage but believes they should have been may complain to the Information Commissioner.

The flowcharts in this agency resource illustrate a third party’s review rights and opportunity to be notified of agency decisions. This resource is based on an OAIC consultation paper, ‘Personal and business information: Third party review rights under the Freedom of Information Act 1982’. Advice about consultation under ss 27 and 27A is available in Parts 6 and 8 of the Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982, available at www.oaic.gov.au.

This agency resource deals with consultation by an agency, though the same consultation principles apply to FOI requests to ministers.

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Flowcharts — third party review rights

In the flowcharts below ‘third party’ means a person or business who can or should be consulted under ss 27 or 27A before an agency decides to give access to a document containing their personal or business information.

Scenario 1: Primary agency decision to grant access

Was the third party invited to make a submission under ss 27 or 27A prior to the agency's access grant decision?

Yes

No

Did the third party make a submission opposing release?

Yes

No

The agency must notify its access grant decision to the third party, who can then apply for internal or IC review. The FOI applicant cannot be given access until the third party's opportunity to apply for internal and IC review has run out.

The agency is not required to notify the third party of its access grant decision. The third party cannot apply for internal or IC review of the agency’s decision. The FOI applicant should be given access as soon as reasonably practicable following the agency’s decision.

Link to text description of Scenario 1.

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Scenario 2: Primary agency decision to refuse access

Was the third party invited to make a submission under ss 27 or 27A prior to the agency's access refusal decision?

Yes

No

Did the third party make a submission opposing release?

Yes

No

The agency is not required to notify its access refusal decision to the third party, but it is good practice to do so as the third party must later be notified if the access refusal decision is either changed on internal review to an access grant decision or is the subject of an application for IC review.

The agency is not required to notify the third party of its access refusal decision. The third party cannot apply for internal or IC review of the agency's decision.

Link to text description of Scenario 2.

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Scenario 3: Application by third party for internal review of an access grant decision

The agency is not required to notify the FOI applicant of the internal review application, but it is good practice to do so as the FOI applicant will have earlier received notice of the access grant decision. The time for making the internal review decision cannot be extended to facilitate consultation with the FOI applicant.

If the access grant decision is affirmed, the agency must notify the third party, who can apply for IC review of the agency's decision. The FOI applicant cannot be given access until the third party's opportunity to apply for IC review has run out.

If the access grant decision is changed to an access refusal decision, the agency must notify both the FOI applicant and the third party. The FOI applicant can apply for IC review of the agency's decision.

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Scenario 4: Application by FOI applicant for internal review of an access refusal decision

Was the third party invited to make a submission under ss 27 or 27A prior to the agency's initial decision to refuse access?

Yes

No

The agency is not required to notify the third party of the internal review application, or provide an opportunity to make a further submission.

If the access refusal decision is affirmed, the agency is not required to notify its decision to the third party.

If the access refusal decision is changed to an access grant decision, the third party must be notified and can apply for IC review of the agency's decision. The FOI applicant cannot be given access until the third party's opportunity to apply for IC review has run out.

The agency must consider whether to consult the third party under ss 27 or 27A. The time for making the internal review decision cannot be extended to facilitate consultation.

If the access refusal decision is affirmed, the agency is not required to notify its decision to the third party.

If the access refusal decision is changed to an access grant decision, a third party who was invited to make a submission and did so must be notified of the decision and their right to seek IC review. The FOI applicant cannot be given access until the third party's opportunity to apply for IC review has run out.

Link to text description of Scenario 4.

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Scenario 5: Application by third party for IC review of an access grant decision

The OAIC is required to notify the FOI applicant of the IC review application (s 54Z). The FOI applicant can apply to the OAIC to be made a party to the IC review as a person whose interests are affected by the IC review.

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Scenario 6: Application by FOI applicant for IC review of an access refusal decision

Was the third party invited to make a submission under ss 27 or 27A, at either the initial or internal review stage?

Yes

No

The agency must take all reasonable steps to notify the third party of the IC review application, whether or not they made a submission opposing release. The agency must give a copy of the notice to the Information Commissioner. The third party has a right to be a party in the IC review proceedings.

The OAIC must consider whether to consult the third party under ss 27 or 27A.

Neither the agency nor the OAIC is required to notify the third party of the IC review application. However, the third party can apply to be made a party to the IC review as a person whose interests are affected by the IC review.

Link to text description of Scenario 6.

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Flowchart text descriptions

Scenario 1 text description: Primary agency decision to grant access

Was the third party invited to make a submission under ss 27 or 27A prior to the agency's access grant decision?

If no:

  • the agency is not required to notify the third party of its access grant decision. The third party cannot apply for internal or IC review of the agency's decision. The FOI applicant should be given access as soon as reasonably practicable following the agency's decision.

If yes:

  • did the third party make a submission opposing release?
    • If no, the agency is not required to notify the third party of its access grant decision. The third party cannot apply for internal or IC review of the agency's decision. The FOI applicant should be given access as soon as reasonably practicable following the agency's decision
    • If yes, the agency must notify its access grant decision to the third party, who can then apply for internal or IC review. The FOI applicant cannot be given access until the third party's opportunity to apply for internal and IC review has run out.

Back to Scenario 1 flowchart.

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Scenario 2 text description: Primary agency decision to refuse access

Was the third party invited to make a submission under ss 27 or 27A prior to the agency's access refusal decision?

If no:

  • the agency is not required to notify the third party of its access refusal decision. The third party cannot apply for internal or IC review of the agency's decision.

If yes:

  • did the third party make a submission opposing release?
    • If yes, the agency is not required to notify its access refusal decision to the third party, but it is good practice to do so as the third party must later be notified if the access refusal decision is either changed on internal review to an access grant decision or is the subject of an application for IC review
    • If no, the agency is not required to notify the third party of its access refusal decision. The third party cannot apply for internal or IC review of the agency's decision.

Back to Scenario 2 flowchart.

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Scenario 4: Application by FOI applicant for internal review of an access refusal decision

Was the third party invited to make a submission under ss 27 or 27A prior to the agency's primary decision to refuse access?

If no:

  • the agency must consider whether to consult the third party under ss 27 or 27A. The time for making the internal review decision cannot be extended to facilitate consultation
  • if the access refusal decision is affirmed, the agency is not required to notify its decision to the third party
  • if the access refusal decision is changed to an access grant decision, a third party who was invited to make a submission and did so must be notified of the decision and their right to seek IC review. The FOI applicant cannot be given access until the third party's opportunity to apply for IC review has run out.

If yes:

  • the agency is not required to notify the third party of the internal review application, or provide an opportunity to make a further submission
  • if the access refusal decision is affirmed, the agency is not required to notify its decision to the third party
  • if the access refusal decision is changed to an access grant decision, the third party must be notified and can apply for IC review of the agency's decision. The FOI applicant cannot be given access until the third party's opportunity to apply for IC review has run out.

Back to Scenario 4 flowchart.

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Scenario 6: Application by FOI applicant for IC review of an access refusal decision

Was the third party invited to make a submission under ss 27 or 27A, at either the primary or internal review stage?

If no:

  • the OAIC must consider whether to consult the third party under ss 27 or 27A
  • neither the agency nor the OAIC is required to notify the third party of the IC review application. However, the third party can apply to be made a party to the IC review as a person whose interests are affected by the IC review.

If yes:

  • the agency must take all reasonable steps to notify the third party of the IC review application, whether or not they made a submission opposing release. The agency must give a copy of the notice to the Information Commissioner. The third party has a right to be a party in the IC review proceedings.

Back to Scenario 6 flowchart.

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The information provided in this resource is of a general nature. It is not a substitute for legal advice.

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

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