Last updated: 123 July 2024

Chapters of the Freedom of Information Guidelines are updated individually. Below are archived versions of each chapter and notes on the changes between versions for each chapter.

Part 1: Introduction to the Freedom of Information Act 1982

Current version

v1.419 December 2016 to ...

Incorporated information that was previously in the Preface, including the status, role and the contents of the Guidelines.

Provided a more comprehensive overview of the key legislative provisions with references to Guidelines chapters.

Referred to additional resources for the public and government agencies published on the OAIC website.

Previous versions

v1.33 October 2014 to  18 December 2016

Expanded and restructured discussion of FOI history, reforms and the OAIC ([1.1]–[1.18]).

Updated discussion of agencies subject to the Act to refer to the Public Governance, Performance and Accountability Act 2013 ([1.25]).

Minor stylistic changes ([1.21]–[1.22], [1.31]).

v1.225 January 2013 to 2 October 2014

Inclusion of new [1.8] to place greater emphasis on administrative access and releasing government information outside the formal requirement of the FOI Act.

Updated reference to Part 13 — Information publication scheme ([1.14]).

v1.125 October 2011 to 24 January 2013Updated regarding commencement of the IPS and Norfolk Island amendments. Stylistic changes to references to FOI guidelines.
Original24 December 2010 to 24 October 2011

Part 2: Scope of application of the Freedom of Information Act 1982

Current version

v 1.7

16 July 2024 to …

Minor revisions have been made to improve readability, ensure consistent use of terms and currency of references.

  

The NBN Co has been added as a prescribed authority to [2.4].

  

[2.7] identifies the Parliamentary Librarian, the Department of the Senate, and the Department of the House of Representatives as excluded from the operation of the FOI Act as a result of provisions in the Parliamentary Service Act 1999.

  

[2.9] notes that Norfolk Island Courts are excluded from the operation of the FOI Act in the same way as Australian Courts.

  

[2.14] updates the list of agencies excluded from the operation of the FOI Act by s 7 of the FOI Act.

  

[2.16] – [2.17] have been added following legislative change that excludes the Parliamentary Workplace Support Service, the Parliamentary Workplace Support Service Advisory Board and the Parliamentary Workplace Support Service Consultative Committee from the operation of the FOI Act, as well as documents in the hands of other agencies that were given to or received by those agencies.

  

[2.23] has been added to reflect updates to the FOI Act with respect to the Independent Review into the workplaces of Parliamentarians and their staff.

  

[2.24] has been updated with respect to the application of the FOI Act to Royal Commissions (following legislative change to the Royal Commission Act 1902).

  

[2.25] has been added to specify that ‘Data scheme entities’, as defined in the Data Availability and Transparency Act 2022, are excluded from the operation of the FOI Act.

  

[2.26] has been added to clarify the operation of the FOI Act with respect to certain AUSTRAC documents.

  

[2.33] now recommends that transfer arrangements between a minister and the minister’s department be documented in writing, with the details of the arrangement published on the minister’s website. Similarly, it is suggested that departments advise FOI applicants of the role they may perform under arrangements with the minister’s office.

  

[2.34] clarifies that when an agency assists a minister process an FOI request, they are subject to the Information Commissioner’s complaint handling jurisdiction in Part VIIB of the FOI Act (to the extent that they are performing functions under the FOI Act).

  

[2.46] has been updated to reflect the reasoning in ‘OV’ and Commonwealth Scientific and Industrial Research Organisation (Freedom of Information) [2018] AICmr 48 in relation to the definition of ‘document of an agency’.

  

Footnote 34 to [2.45] adds further examples of documents that fall within the scope of the FOI Act – such as text messages on work issued mobile phones and documents stored on software installed for work purposes on personal devices.

  

[2.63] – [2.67] is a new section titled ‘Change of minister’ and applies the reasoning in Patrick v Attorney-General (Cth) [2024] FCA 268.

  

Updates have been made to [2.72] to reflect departmental responsibility with respect to commissions of inquiry.

Previous versions

v1.6 19 December 2016 to 15 July 2024

Expanded guidance to reflect developments and discussion in recent decisions.

Updated to reflect that the Attorney-General’s Department is exempt in respect of documents in respect of activities undertaken by the Australian Government Solicitor (Sch 2 Part II Division 1) in accordance with the Judiciary Amendment Act 2015.

v1.5 3 October 2014 to 18 December 2016

Updated and expanded discussion about the definition of an agency, the scope of the Act and exempt and partly exempt agencies, including the definition of ‘matters of an administrative nature’ based on Kline v Official Secretary to the Governor General [2013] HCA 52 ([2.2]–[2.14]).

Revised discussion of mandatory request transfer provisions ([2.17]).

Moved discussion of ‘documents’ from Part 3 into this Part ([2.25]–[2.53]).

Revised discussion of ministers’ FOI obligations to match the above change ([2.21]–[2.24]), and also discussed IC reviews of ministerial decisions where there is a change of minister during the review ([2.27]).

v1.4 16 September 2013 to 2 October 2014

Updated to reflect application of the FOI Act to Parliamentary departments ([2.5]) and the courts ([2.6]) following the passage of the Parliamentary Service Amendment (Freedom of Information) Act 2013, the Federal Circuit Court of Australia (Consequential Amendments) Act 2013 and the Courts Legislation Amendment (Judicial Complaints) Act 2012.

Included the definition of ‘commercial activities’ as it applies to NBN Co Ltd ([2.11]).

Expanded discussion about the definition of an 'official document of a minister' ([2.19]–[2.24]).

Stylistic changes throughout document (most notably [2.9]–[2.10]).

v1.3 28 March 2013 to 15 September 2013

Expanded discussion of the application of the FOI Act to the Official Secretary to the Governor-General following Kline v Official Secretary to the Governor-General [2012] FCAFC 184 ([2.7]).

Inclusion of Parliamentary Budget Office and Parliamentary Budget Officer in list of bodies that are not agencies for the purposes of the FOI Act and updated footnote reference to Fair Work Australia to the Fair Work Commission ([2.9])

Incorporation of footnote references to recent AAT and IC review decisions ([2.10] and [2.19])

Included a reference to the exemption of all agencies and ministers from the FOI Act in relation to private sessions before the Child Sexual Abuse Royal Commission ([2.12]).

Clarification that 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 ([2.24]).

v1.2 9 May 2012 to 27 March 2013 New paragraph about the application of the FOI Act to Commonwealth Parliamentary departments ([2.5])
v1.1 25 October 2011 to 8 May 2012 Inserted footnote at [2.6] referring to ‘B’ and Office of the Official Secretary to the Governor-General [2011] AICmr 6. Stylistic changes to references to FOI guidelines.
Original 24 December 2010 to 24 October 2011

Part 3: Processing and deciding on requests for access

Current version

v1.8 15 December 2021 to ...

Clarification that there are no other extension of time provisions provided for under the FOI Act other than those in Table 3 at [1.144]

Clarification that an extension under s 15AA requires the consent of the applicant and must be in writing

Clarification that a s 15AA request cannot be made once the decision has become deemed under s 15AC

Clarification that multiple extensions under s 15AA may be sought, however, the combined length of all agreed extensions must not be more than 30 days

Clarification that it is preferable that a s 15AA agreement (for the full 30 day period) is sought before seeking an extension under s 15AB

Further discussion about complexity and volume in relation to applications for an extension of time under s 15AB

Clarification that s 15AB does not apply to deemed refusals under s 15AC

Previous versions

v1.719 June 2020 to 15 December 2021

Updates to [3.90] and [3.94] to refer to new and updated resources relating to searching for documents within the scope of an FOI request.

v1.6 25 January 2018 to 18 June 2020

Stylistic changes and update of case law throughout.

Clarification in relation to s 11(2) and the decision in ‘FG’ and National Archives of Australia [2015] AICmr 26 ([3.40]).

Clarification as to ‘disclosure to the world at large’ ([3.41]).

Clarification as to right to information under secrecy provision ([3.49]).

Inserted discussion regarding reasonable steps to assist applicant in practical refusal matters ([3.50]).

Inserted discussion regarding use of s 22 on names ([3.54]).

Inserted suggestion that following a transfer, the receiving agency seeks applicant’s agreement to extension under s 15AA ([3.62]).

Removed reference to advice from PMC regarding consultation with PMC, DFAT and intelligence organisations ([3.71]).

Clarification regarding consultation with third parties ([3.74]-[3.77], [3.79]-[3.81]).

Inserted dot points regarding charges and amendments (3.83]).

Inserted further discussions about elements of s 24A ([3.85]).

Clarification as to meaning of ‘reasonable’ ([3.88]).

Suggestion to explain the steps taken to search for documents ([3.90]).

Discussion about assisting applicants to identify the specific documents they are seeking ([3.94]).

Discussion about implicit purpose of s 22 and reference to ‘FM’ and Department of Foreign Affairs and Trade [2015] AICmr 31 ([3.95]).

Insertion of discussion regarding s 25 following decision in Paul Farrell and Australian Federal Police (Freedom of information) [2017] AICmr 113 ([3.105]).

Further discussion regarding assisting applicants to identify documents ([3.110]).

Clarification as to difference between ‘substantial’ and ‘unreasonable’ ([3.112]-[3.113]).

Insertion of examples of when it would not be unreasonable to process a request ([3.115]).

Discussion regarding using a charges calculator ([3.120]).

Discussion regarding sampling ([3.121]).

Clarification that once a decision becomes deemed, it is not open to agencies to combine requests following decision in Paul Farrell and Department of Immigration and Border Protection [2017] AICmr 116.

Discussion about request consultation and ensuring that contact person is available ([3.130]).

Insertion of when a request is taken to be withdrawn ([3.135]).

Suggestion that agencies and ministers seeking extension under s 15AB to provide details to support request ([3.147]-[3.148]).

Clarification that once the Commissioner has allowed further time under s 15AC(5), it is not open to agencies to extend the processing time further ([3.156]).

Insertion of circumstances where s 55G can be used when there is a deemed access refusal decision ([3.161]).

Discussion regarding evidence of substantial adverse effect ([3.176]).

Further discussion regarding providing access in stages ([3.197]-[3.198]).

Clarification regarding situation where new software or hardware is needed, then this will not be reasonable under s 17 ([3.207]-[3.208]).

v1.5 3 October 2014 to 24 January 2018

Major revision integrating Part 3 and Part 8 into a new consolidated Part 3. See the paragraph comparison table.

Section ‘The formal requirements of an FOI access request’ has been rewritten ([3.48]).

Former Part 3 section on ‘Sufficient information’ now moved to ‘Interpreting the scope of the request’ ([3.54]-[3.56]) and ‘Request does not sufficiently identify documents’ ([3.97]-[3.98]).

Revised discussion of mandatory request transfer provisions ([3.67]).

Former Part 3 section on ‘Identifying, located and collating documents’ now moved to ‘Refusing a request for a document that does not exist, cannot be found or is not received from a contractor’ ([3.81]-[3.83]).

Included discussion about requests for information rather than document ([3.98]).

Expanded practical refusal discussion ([3.96]–[3.119]).

Updated discussion of the Electronic Transactions Act 1999 to be consistent with other Parts of these Guidelines ([3.122]-[3.123]).

Former Part 8 content

Cited AAT decision about applying the FOI Guidelines ([3.12]).

Clarified that decision-makers can refuse to confirm or deny the existence of a document exempt under s 45A ([3.78]).

Expanded section on providing edited copies of documents ([3.85]–[3.90]).

Revised discussion of request timeframes and extensions of time ([3.120]–[3.129]).

Expanded discussion about giving access to documents in cases where third parties have review rights ([3.168]).

Expanded section on information stored in electronic form to reflect Collection Point Pty Ltd v Commissioner of Taxation cite> [2013] FCAFC 67 ([3.182]–[3.188]).

v1.4 6 March 2014 to 2 October 2014

Clarification that administrative access schemes involving personal information must comply with the minimum requirements of Australian Privacy Principles 12 and/or 13 [3.5]. Other minor updates to reflect amendments to the Privacy Act 1988.

v1.3 28 March 2013 to 5 March 2014

Clarification that the processing period commences on the day after the day the request is received ([3.31])

Removed inaccurate footnote reference to Chu v Telstra Corporation Limited (2005) FCA 1730 ([3.58]).

Updated to included references to Parliamentary Budget Office documents (s 45A) ([3.89]).

v1.2 25 January 2013 to 27 March  2013

Addition of new paragraphs encouraging agencies to develop policies and processes that facilitate the disclosure of information to the public administratively ([3.3]–[3.5]).

Clarification that a request may be made by one person on behalf of another person or group, or by an organisation (such as a law firm or non-government organisation) on behalf of a client or member ([3.6], [3.36]–[3.39]). See also the Information Commissioner's statement Who Qualifies as a ‘Person’ Eligible to Make a Request Under s 15 of the Freedom of Information Act 1982? (January 2013) (PDF).

Inclusion of footnote reference to Agency resource 14: Access to government information – administrative access schemes ([3.23]).

Expanded discussion of requirements when making an FOI request by email or fax and referencing s 14A of the Electronic Transactions Act 1999 ([3.28]–[3.29]).

Incorporation of footnote references to IC review decisions: 'G' and Australian Taxation Office [2012] AICmr 9 and 'H' and Australian Broadcasting Corporation [2012] AICmr 10 ([3.54], fn 14).

v1.1 25 October 2011 to 24 January 2013 Stylistic changes to references to FOI guidelines.
Original 22 July 2011 to 24 October 2011

Part 4: Charges for providing access

Current version

v1.89 February 2021 to ...

Clarification as to how agreement to pay the charge may be notified by the applicant [4.56]

Clarification of the circumstances in which an applicant may dispute the preliminary assessment of the charge [4.57]

Previous versions

v1.719 June 2020 to 9 February 2021

Revisions to reflect the commencement of the Freedom of Information (Charges) Regulations 2019 on 1 April 2019.

Reinforcement of the lowest reasonable cost object of the FOI Act and the circumstances in which charging may not be appropriate.

Clarification that when exercising the discretion in s 29(4) it is not necessary for the applicant to establish both financial hardship (s 29(5)(a)) and that giving access to the document would be in the general public interest or in the interest of a substantial section of the public (s 29(5)(b)) (see [4.98]).

Further explanation about the effect of two new provisions in the Freedom of Information (Charges) Regulations 2019 – ss 10(2) and 10(3) – which provide that a charge can be adjusted after an FOI request has been processed.

Major revisions to improve flow and readability.

Updates to case law.

v1.619 December 2016 to 18 June 2020

Expanded guidance to reflect developments and discussion in recent decisions, particularly the AAT decision in MacTiernan and Secretary, Department of Infrastructure and Regional Development (Freedom of information) [2015] AATA 584 [4.79] – [4.87].

Provided greater emphasis on the importance of considering the objects of the Act when deciding whether a charge should be imposed or when considering whether charge imposed should be reduced or waived.

Major revisions for better flow and readability.

Included a section on the use of a charges calculator [4.56] – [4.59].

Provided further emphasis on the importance of sampling and that a sample of at least 10% is an appropriate sample size [4.60] – [4.62].

Removed paragraphs referring to changes in 2010 and the Hawke report.

Removed section re ‘Application fee for AAT review’.

v1.53 October 2014 to 18 December 2016

Deleted [4.5] and made corresponding expansion to [4.9].

Updated AAT application fee discussion to reflect the fee as of 1 July 2014 ([4.8]).

Noted that the obligation not to charge individuals for access to their own personal information also exists under Australian Privacy Principle 12 ([4.12]).

Reference to/discussion of new IC review decisions, see [4.15], [4.32], [4.47], [4.49], [4.52], [4.58].

Expanded discussion of charge waiver/reduction on public interest grounds ([4.54]-[4.56]).

Clarified application of the Public Governance, Performance and Accountability Rule 2014 to FOI charges ([4.63]).

v1.46  March 2014 to 2 October 2014

Update to the definition of personal information to align with amendments to the Privacy Act 1988 [4.13].

v1.311 December 2013 to 5 March 2014

Revised Tables 1 and 2 to use language more consistent with the FOI Act and to correct inaccurate references to certain provisions and applicable charges.

Updated discussion about the Information Commissioner’s February 2012 Review of Charges under the Freedom of Information Act 1982 and Dr Allan Hawke AC’s review of the FOI Act and AIC Act ([4.11]).

Updated discussion about the Privacy Act to reflect reforms that commence on 12 March 2014 ([4.14]).

Noted that search and retrieval time does not include time by agency officers other than the decision maker discussing and reviewing the results of search and retrieval activities ([4.33]).

Identified principles from the public interest test in s 11A(5) that can also be applied in the test under s 29(5) ([4.60]).

Discussed reducing or waving a charge when an applicant responds to a charges notice by reducing the scope of their request ([4.62]).

Included advice about providing administrative access to information as a means of reducing an applicable charge ([4.65]).

v1.228 March 2013 to 10 December 2013

Updated fee payable to the AAT for an application for review of a decision of the Information Commissioner ([4.8])

Expanded discussion of collecting charges and whether a charge is a debt due to the Commonwealth ([4.30]).

Clarification that a decision maker does not have to consider the content of a document where it is clear from the applicant's request that, if such a document exists, the Act does not apply to it ([4.53]).

Discussion of good administrative practice when notifying an internal review applicant of an affirmed charges decision ([4.64]-[4.66]).

Incorporation of footnote references to IC review decisions ([4.48], [4.53] and [4.56]).

v1.125 October 2011 to 27 March 2013Updated regarding commencement of the IPS ([4.54])
Original 

Part 5: Exemptions

Current version

v 1.6

7 May 2024 to …

Three new paragraphs have been added to the introduction to emphasise the discretion agencies and ministers have to release documents, even if they are exempt under Part IV.

  

Specific references to conditional exemptions in the section titled ‘ Documents exempt under Part IV’ have been removed. These paragraphs have been replaced with a cross reference to Part 6.

  

Paragraphs [5.19] – [5.21] in version 1.5 have been deleted as they define ‘substantial adverse effect’ which is not a term used in in Division 2 of Part IV.

  

Updates to the commentary on s 33 have been made to reflect the following FOI decisions: Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of information) [2020] AATA 4964 (in relation to ‘damage’), Nick Xenophon and Department of Health (Freedom of information) [2018] AICmr 20, Secretary, Department of Prime Minister and Cabinet and Summers (Freedom of information)[2019] AATA 5537 (in relation to international relations).

  

Updates to the discussion of s 34 have been made to reflect the following FOI decisions: Patrick and Secretary, Rex Patrick and Department of Defence (Freedom of information) [2019] AICmr 19 (Cabinet dates and reference numbers), Department of Prime Minister and Cabinet (Freedom of Information) [2021] AATA 2719 (National Cabinet documents), Justin Warren and Services Australia (Freedom of information) [2019] AICmr 70 and Josh Taylor and Minister for Communications and the Arts (Freedom of information) [2017] AICmr 9 (documents disclosing a deliberation or decision of the Cabinet).

  

The exceptions to the application of s 34 have been moved to the end of that section so as not to detract from the sequencing of the subsections in s 34.

  

The commentary on s 38(2) has been supplemented with reference to the Acting FOI Commissioner’s decision in AFV and Services Australia (Freedom of information) [2023] AICmr 125.

  

Decisions in relation to ‘information supplied on the understanding, express or implied, that the source’s identity would remain confidential’ (s 45) have been updated to include ‘HP’ and Department of Immigration and Border Protection (Freedom of Information) [2015] AICmr 77 and The Guardian Australia and Department of Climate Change, Energy, the Environment and Water (Freedom of information) [2022] AICmr 70.

  

A new section ‘Legal Adviser-client relationship’ has been added to incorporate the reasoning in Sean Butler and Australian Small Business and Family Enterprise Ombudsman (Freedom of information) [2023] AICmr 71.

  

The discussion of issues regarding in-house lawyers has been updated to reflect the decision in ‘ACV’ and Tertiary Education Quality and Standards Agency (Freedom of information) [2023] AICmr 3.

  

With reference to Alpert v Secretary, Department of Defence [2022] FCA 54, clarification has been added to the effect that providing documents to the OAIC for the purpose of an IC review will not constitute waiver  of legal professional privilege.

  

[5.179] references ‘ACV’ and Tertiary Education Quality and Standards Agency (Freedom of information) [2023] AICmr 3 in relation to ‘real harm’ for the purposes of s 42.

  

[5.60] – [5.62] incorporates legislative changes to s 55ZA with respect to the OAIC obtaining evidence from the Inspector-General of Intelligence and Security in relation to documents claimed to be exempt under s 33 of the FOI Act.

  

New paragraphs [5.186] and [5.187] have been added to clarify that s 45 applies only to an action for breach of confidence, not breaches actionable in some other way (tort or breach of statutory duty). Citations to Patrick; Secretary, Department of Defence and [2021] AATA 4627 and Francis and Australian Sports Anti-Doping Authority (Freedom of information) [2019] AATA 12 are included.

  

[5.187] includes discussion of Johns v Australian Securities Commission [1993] HCA 56 [14] in relation to information obtained under the exercise of compulsory powers in the context of s 45.

  

Rex Patrick and Department of Defence (No 2) (Freedom of information) [2020] AICmr 40 is referenced in relation to trade secrets/commercially valuable information (see [5.234] and [5.237]).

Previous versions

v1.514 June 2019 to 7 May 2024

Amended the ‘parliamentary privilege’ discussion to reflect the Information Commissioner decision in Seven Network (Operations) Limited and Australian Federal Police (Freedom of information) [2019] AICmr 32 (6 June 2019).

v1.419 December 2016 to 13 June 2019

References to the 2010 amendments removed.

Changes to the status of Norfolk Island reflected.

Substantial revisions to expand guidance reflecting developments and discussions in case law that has occurred between 2013 and 2016.

Minor changes to structure. The guidance for legal professional privilege (s 42), for example, has been expanded by including separate headings for legal advice privilege and litigation privilege and by discussing the scope of a claim to privilege with reference to the 2016 AAT case of Taggart and Civil Aviation Safety Authority (Freedom of information) [2016] AATA 327.

v1.313 September 2013 to 18 December 2016

Removed former [5.40] about consulting with foreign governments or international organisations about information that is already in the public domain, and expanded the renumbered [5.40] to note that the final access decision lies with the decision maker, not the foreign source consulted.

Updated discussion of the Cabinet documents exemption and consultation with the Department of the Prime Minister and Cabinet ([5.48]–[5.49], [5.60], [5.69]).

Expanded discussion of legal professional privilege exemption to reflect latest court decisions and provide greater guidance about when litigation is said to be anticipated ([5.114]–[5.126]).

Amended Parliamentary Budget Office documents exemption discussion to reflect the passage of the Parliamentary Service Amendment (Freedom of Information) Act 2013 ([5.157]).

Revised discussion about when information has commercial value ([5.188]–[5.191]).

Incorporation of new footnote references to IC review decisions throughout ([5.32], [5.35]–[5.36], [5.84], [5.88]–[5.89], [5.118], [5.134], [5.143], [5.191]).

Stylistic changes throughout document (most notably [5.45]).

v1.228 March 2013 to 12 September 2013

Inclusion of reference to the Parliamentary Budget Office documents exemption (s 45A) ([5.6], [5.44], [5.154]–[5.163])

Incorporation of footnote references to IC review decisions throughout (paragraphs [5.53], [5.94], [5.110], [5.128], [5.134], [5.139], [5.181]).

v1.125 October 2011 to 27 March 2013

Reference to ‘informal’ request rather than ‘valid’ request (paragraph 5.1). Inclusion of references to ss 47E(a) and 47E(b) ([5.12]).

Updated regarding commencement of the IPS ([5.133]).

Stylistic changes to references to FOI guidelines.

Original25 February 2011 to 24 October 2011

Part 6: Conditional exemptions

Current version

v 1.4

15 May 2024 to …

Minor revisions have been made to improve readability, ensure consistent use of terms and to update currency of references (for example, National Cabinet not Council of Australian Governments).

  

Part 6 has been restructured to follow the decision-making process. Conditional exemptions are discussed first, followed by the application of the public interest test. (Version 1.3 commenced with discussion of the public interest test.)

  

References to ‘harm threshold’ have been removed and replaced with ‘statutory criteria for the conditional exemption’.

  

Sections on the application of the public interest test as it applies to specific conditional exemptions (for example, inhibition of frankness and candour, and incoming government briefs in relation to s 47C and Commonwealth-State relations in relation to s 47B) have been moved to the public interest section at the end of the Part.

  

The 6-step process of deciding whether documents are conditionally exempt under Division 3 of Part IV of the FOI Act in v 1.3 has been deleted and relevant guidance incorporated into the introduction to the conditional exemptions and the beginning of the section on the public interest test.

  

The section dealing with public servants’ personal information under s 47F has been updated to reflect the reasoning in Warren; Chief Executive Officer, Services Australia and (Freedom of information) [2020] AATA 4557 and is supplemented by recent IC review decisions demonstrating the Information Commissioner’s approach in recent decisions. Discussion about public servants’ information has also been included under s 47E.

  

The existing guidance was not clear whether there is an arrangement in place between the Commonwealth and States for the purposes of consultation under s 26A. Although that arrangement is dated it remains current and [6.41] – [6.44] outlines the steps required to be taken under the arrangement.

  

The Guidelines have been supplemented with reference to recent IC review, AAT and Federal Court decisions.

Previous versions

v1.319 December 2016 to 15 May  2024

References to the 2010 amendments removed.

Changes to the status of Norfolk Island reflected.

Substantial revisions to expand guidance reflecting developments and discussions in case law that has occurred between 2013 and 2016.

The structure remains largely unchanged. However, there have been major rewrites to four areas in particular:

  • the public interest test section
  • the personal privacy conditional exemption section
  • the business affairs conditional exemption section, and
  • the deliberative processes conditional exemption.

Updated discussion of the public interest.

v1.228 March 2013 to 18 December 2016

Incorporation of footnote references to IC review decisions throughout ([6.25], [6.29], [6.32], [6.62], [6.68], [6.78], [6.120], [6.127], [6.166], [6.184], [6.196]).

Removal of reference to Department of Social Security v Dyrenfurth (1988) 80 ALR 533 ([6.142]).

Amended description of Searle Australia Pty Ltd v Public Interest Advocacy Centre and Department of Community Services and Health (1992) 108 ALR 163 to more accurately reflect ‘serious criminality' rather than ‘unlawful conduct' ([6.166]).

v1.128 October 2011 to 27 March 2013

Inserted reference to Carver and Fair Work Ombudsman [2011] AICmr 5 at [6.25] and text at [6.63].

Updated cross-reference to Part 8 of FOI Guidelines at [6.49].

Inserted text at [6.49] and [6.84].

Inclusion of references to ss 47E(c) and 47E(d) at [6.87] and [6.92].

Updated regarding Norfolk Island amendments.

Updated regarding commencement of the IPS ([6.57]).

Stylistic changes to references to FOI guidelines.

Original4 March 2011 to 27 October 2011

Part 7: Amendment and annotation of personal records

Current version

v1.425 January 2018 to ...

Minor stylistic changes throughout.

Additional/updated references in the text and footnotes to the section ‘Assessing the evidence’ to more recent case law such as ‘NA’ and Department of Immigration and Border Protection [2017] AICmr 112.

Previous versions

v1.33 October 2014 to 24 January 2018

Minor stylistic changes throughout.

Additional/updated references to obligations under the Australian Privacy Principles ([7.9], [7.24], [7.45]).

Revised discussion of request transfer provisions ([7.69]–[7.71]).

v1.26 March 2014 to 2 October 2014

Revision of introductory paragraphs to align with amendments to the Privacy Act 1988 and insertion of a new section – ‘Comparison of FOI Act procedures and APP 13’ [7.6]-[7.10].

Other updates throughout to reflect Privacy Act amendments, including to the sections on the meaning of incorrect, incomplete, misleading and out of date [7.17]-[7.22] and discussion of annotation [7.64].

Revision of ‘Assessing the evidence’ [7.40]-[7.46] and ‘Consequences of amendment’ [7.48] to reflect recent IC review decisions.

Revisions of [7.27]-[7.29] and [7.77]-[7.78] to reflect the requirements of the Electronic Transactions Act 1999.

Clarification that while the FOI Act does not require agencies to acknowledge receipt of amendment request, it is good administrative practice to do so [7.81].

v1.128 October 2011 to 5 March 2014

Amendment of references to FOI Act ([7.40] and [7.41]).

Stylistic changes to references to FOI guidelines.

Original14 April 2011 to 27 October 2011

Part 9: Internal agency review of decisions

Current version

v 1.5

09 April 2024 to …

[9.8] clarifies that FOI applicants and affected third parties should not apply for internal review and IC review at the same time and what will happened if they do so.

  

[9.9] clarifies that internal review is also not available when a decision is deemed to have been made by the principal officer of an agency under s 15AC. Further it clarifies that internal review is not available when the original decision was made by a person authorised by the minister to make a decision on the minister’s behalf.

  

A paragraph has been added to the section on ‘Making an application for internal review’ explaining that if internal review applicants advise of the reason for applying for internal review, this will allow the agency to conduct the internal review as quickly and efficiently as possible ([9.20]).

  

The relevant factors for agencies to take into account when deciding whether to grant an extension of time for a person to apply for internal review are set out ([9.27]).

  

A new paragraph emphasises that affected third parties in access grant decisions should apply for internal or IC review prior to the expiration of the statutory timeframe. If they fail to do so the agency may release the documents in accordance with the primary decision, rendering internal review of no effect ([9.31]).

  

A new paragraph suggests that the internal review decision-maker have some training in FOI and experience with administrative decision making to support independence in internal review decision making ([9.36]).

  

The internal review decision-making process is outlined in more detail ([9.37]–[9.42]).

  

A sentence has been added to explain that where an affected third party is given an opportunity to make an exemption contention during the internal review there is no extension of time to the period for notifying a decision (that is, there is no equivalent to s 15(6) for internal reviews) ([9.40]).

  

[9.46] explains that an agency can only apply for a s 54D extension of time after the internal review processing period has ended and there is a deemed internal review decision.

  

[9.48] specifies the factors the Information Commissioner will consider when determining whether it is reasonable in all the circumstances to grant an extension of time for an agency to make an internal review decision.

  

[9.51] notes that if an agency is deemed to have affirmed the original decision because the statutory time to make a decision has passed, it is open to the agency to  continue processing the internal review and provide access to the requested documents administratively prior to the commencement of an IC review.

  

A new section focused on charges makes it clear that charges for processing an FOI request cannot be imposed on internal review ( [9.54]–[9.56]).

  

A new section has been added to explain the obligation to report statistical data about internal reviews on the FOI quarterly statistical return form on the OAIC FOI Statistics Portal ([9.57]–[9.59]).

Previous version

v1.4 3 October 2014 to 9 April 2024

Rewrote opening section ([9.1]–[9.2]).

Revised discussion about internal review availability and third party review rights ([9.10]–[9.11], [9.15]).

Explained discrepancy between internal review and IC review timeframes for review of access grant decisions ([9.18]–[9.19]).

Restructured ‘Time for deciding’ section ([9.27]–[9.33]).

Renamed ‘The internal review decision’ section to ‘Principles of internal review decision making’, mentioned practical refusal reasons ([9.34]]).

Previous versions

v1.313 September 2013 to 2 October 2014

Inserted reference to the OAIC internal review FOI agency resource ([ 9.8]).

Amended internal review decision making principles to clarify that decision makers can rely on searches or consultation previously undertaken, as opposed to the previous reference to ‘work undertaken’ ([9.32]).

Rewrote discussion about notifying the applicant of an internal review decision to replace repetition of discussion about s 26 notices from Part 8 of the Guidelines with considerations specific to internal review ([9.35]–[9.36]).

Stylistic changes throughout document.

v1.225 January 2013 to 12 September 2013

Amendment to clarify when third parties may apply for internal review ([9.12]–[9.13]).

v1.128 October 2011 to 24 January 2013

New paragraph clarifying guidance regarding extension of time ([9.25]).

Paragraph numbers from [9.25] renumbered.

Clarification of third party consultation at [9.26].

Updated regarding Norfolk Island amendments.

Stylistic changes to references to FOI Guidelines.

Original15 March 2011 to 27 October 2011

Part 10: Review by the Information Commissioner

Current version

v 1.11

1 July 2024 to …

Minor revisions have been made to improve readability, ensure consistent use of terms and currency of references.

  

References to resources have been updated where appropriate (for example, the reference to the Legal Services Direction 2005 has been updated to the 2017 Direction).

  

Updates have been made to IC review procedures and processes to incorporate the ‘Direction as to certain procedures to be followed by agencies and ministers in IC reviews’ (the Procedure Direction) that comes into effect on 1 July 2024.

  

Some procedural content (for example the table at 10.100 in v 1.10) has been moved from Part 10 into the Procedure Direction.

  

Updates to the section on ‘Evidence by the Inspector-General of Intelligence and Security’ ([10.86] – [10.95]) have been made to reflect legislative changes to s 55ZA which came into effect on 12 August 2023.

  

Further guidance on varying a decision under s 55G during an IC review has been added [10.75] – [10.83].

  

Further guidance on reaching agreement under s 55F has been added ([10.117] – [10.121]).

  

Further information about requesting a hearing has been added ([10.70] – [10.74]).

  

References to IC review, AAT and Federal Court decisions have been updated to reflect recent developments.

Previous versions

v1.10

15 February 2022 to 1 July 2024 Update to the ‘Steps in the Information Commissioner review process’ section ([10.100] – [10.101])to provide further clarification of what may be requested by IC review officers when notifying agencies of a review application and seeking relevant information.
v1.9 19 June 2020 to 15 February 2022

Update to footnote (see [10.25].

Updates to cross referenced paragraph (see [10.52] and [10.63]).

Update following a direction as to the certain procedures to be following by applicants in IC reviews being issued (see [10.57]-[10.58]).

Clarifies the practice around hearing in IC reviews (see [10.63] – [10.64]).

Update to footnote (see [10.85])

Clarifies procedure for making confidential submissions (see [10.104])

Additional explanation about matters unable to be considered by the Information Commissioner in relation to searches (see [10.131])

v1.8 9 February 2021 to 1 September 2021

Clarifies when a case officer may provide a preliminary view (see [10.23]).

Updates smartform URL link (see [10.32]).

Updates to case law (see [10.86]).

Clarifies use of s 54W(b)) (see [10.88]-[10.89]).

Clarifies use of preliminary views  (see [10.116] – [10.119]).

Additional explanation about when a person can apply to the AAT for review (see [10.147]).

v1.7 19 June 2020 to 9 February 2021

Introduction of new section ‘Compliance with the Information Commissioner’s Decision’ and new paragraphs [10.32] and [10.33].

v1.6 26 February 2018 to 18 June 2020

Updated to include references to the Direction as to certain procedures to be followed in IC reviews.

Updated to reflect the Freedom of information regulatory action policy.

v1.5 19 December 2016 to 25 February 2018

Updated to reflect legislative amendments by the Norfolk Island Legislation Amendment Act 2015 including the repeal of s 26AA of the FOI Act which related to the obligation to consult where documents affected Norfolk Island intergovernmental relations.

Updated to reflect developments and discussion in recent decisions including Australian Associated Press Ltd and Department of Immigration and Border Protection [2016] AICmr 25 that a revised decision under s 55G of the FOI Act may still be an access refusal decision provided that a variation is made in a manner that favours the applicant.

Updated to reflect Information Commissioner processes in carrying out IC review functions.

v1.4 3 October 2014 to 18 December 2016

Minor stylistic changes throughout.

Updated discussion about exercise of Part VII FOI Act functions to reflect OAIC practice ([10.1], [10.64], [10.75]).

Discussed IC reviews of ministerial decisions where there is a change of minister during the review ([10.19]).

Explained discrepancy between internal review and IC review timeframes for review of access grant decisions ([10.29]).

Rewrote discussion about rights of third parties to participate in IC reviews ([10.32]–[10.33]).

Added new discussion of notification timeframe requirements ([10.46]).

Discussed OAIC practices for conducting hearings and referring matters to the Administrative Appeals Tribunal ([10.49], [10.69]).

Included a footnote reference to an IC review decision involving a revised decision under s 55G ([10.52]).

Removed unnecessary reference to the pre-2010 FOI Act ([10.126]).

v1.3 28 March 2013 to 2 October 2014

Amendment to include references to Parliamentary Budget Office documents exemption (s 45A) ([10.69], [10.72], [10.74]).

v1.2 25 January 2013 to 27 March 2013

Clarification as to when third parties may apply for IC review ([10.9]).

Inserted text noting that the Information Commissioner and the Inspector-General Intelligence and Security have entered into a memorandum of understanding ([10.55]).

v1.1 28 October 2011 to 24 January 2013

Addition of guidance regarding who should notify the FOI applicant if a third party has sought IC review of an access grant decision ([10.78]).

Updated regarding Norfolk Island amendments.

Stylistic changes to references to FOI guidelines.

Original 24 December 2010 to 27 October 2011

Part 11: Investigations and complaints

Current version

v1.59 February 2021 to ...

Additional guidance on relationship between complaints and IC reviews [11.5]

New section on powers of Information Commissioner to investigate [11.7]

Inserts list of factors to be taken into account when deciding whether to undertake an investigation [11.8]

Guidance on use of s 73(b) when IC review and complaint made at same time [11.12]

Guidance on process for responding to a notice on completion [11.43]

Clarification of the process of notifying the complainant of the outcome of the complaint [11.44]

Updated advice on publication of investigation outcomes [11.45 and 11.46]

Previous versions

v1.426 February 2018 to 9 February 2021

Updated to include guidance contained in the Freedom of information regulatory action policy ([11.8], [11.9], [11.38].

v1.319 December 2016 to 25 February 2018

Revised to provide expanded guidance about Information Commissioner processes in carrying out complaints and investigations functions.

v1.23 October 2014 to 18 December 2016

Minor stylistic changes ([11.2]–[11.5], [11.12], [11.19]–[11.20], [11.26]–[11.27], [11.29]–[11.30], [11.34]).

Expanded discussion about what an Information Commissioner or Ombudsman investigation report must not include ([11.15], [11.34], [11.38])

Removed unnecessary reference to the pre-2010 FOI Act ([11.39]).

v1.128 October 2011 to 2 October 2014Stylistic changes to references to FOI Guidelines.
Original24 December 2010 to 27 October 2011

Part 12: Vexatious applicant declarations

Current version

v1.528 October 2021 to ...

Inclusion of discussion about agency relationships as a general consideration (see [12.48]- [12.50])

Additional discussion about the power to revoke or vary a vexatious applicant declaration (see [12.56]

Previous versions

v1.429 November 2019 to 28 October 2021

Revision to enhance guidance on the steps agencies and ministers should take before and after making an application for a vexatious applicant declaration.

Enhanced guidance on the circumstances in which the Information Commissioner may declare a person to be a vexatious applicant under s 89K.

Enhanced guidance on review rights.

Updated to reflect recent Information Commissioner decisions.

v1.319 December 2016 to 28 November 2019Major revision to provide expanded guidance about vexatious applicant declarations.
v1.23 October 2014 to 18 December 2016Major revision to provide expanded guidance about vexatious applicant declarations.
v1.128 October 2011 to 2 October 2014Stylistic change to references to FOI Guidelines.
Original24 December 2010 to 27 October 2011

Part 13: Information Publication Scheme

Current version

v1.5 July 2023 to ...

References to ‘information architecture’ changed to ‘Structure of the IPS’.

Updated reference material and links.

Introduced section on The IPS and disclosure log requirements [13.12] – [13.14].

Introduced section on Open by design [13.17] – [13.22].

Introduced section on Overlapping publication requirements [13.23] – [13.26].

Revised guidance on the IPS information register [13.40] – [13.45]

Revised guidance about ‘other’ information that agencies may publish on the IPS [13.131] – [13.139].

Introduced section on Governance arrangements [13.143] – [13.146].

Updated guidance regarding the publication of complaint investigation summaries on the OAIC website [13.166] – [13.168].

Previous versions

v1.4 3 October 2014 to July 2023

Minor stylistic changes throughout.

Updated references to guidance material agencies should consider when deciding what information to publish under the Information Publication Scheme ([13.59], [13.107], [13.110]).

Updated incidental powers and annual report discussion to refer to the  Public Governance, Performance and Accountability Act 2013 ([13.47], [13.55]).

Revised ‘Review of agency IPS compliance’ section ([13.132]–[13.133]).

v1.3 25 January 2013 to 2 October 2014

Stylistic changes to website references throughout document.

References to the Guidance for Agency Websites: ‘Access to Information’ Web Page updated and included throughout document, including the annexed IPS agency plan template.

Expanded discussion of IPS website publication requirements to include reference to the ‘Access to information' icon and links to other agency online content ([13.116]).

v1.2 29 June 2012 to 24 January 2013

Stylistic changes throughout document.

Added information about the OAIC's IPS compliance review program ([13.24] and [13.132]).

Provided clarification in regard to the listing of officers appointed under statute to a position or role in an agency on the agency's IPS entry ([13.51]).

Removed reference to 2011 annual reports ([13.54]).

Included advice about consultation with affected staff where potential harm could arise from publishing their names in information released under s 8(2)(g) ([13.64]).

Added footnote referring agencies to the Information Commissioner's Guidance for agency websites ([13.82]).

Amended references to guidance from other agencies referred to in the section on ‘Other information to be published under the IPS' ([13.106]-[13.111]).

Updated reference providing examples of alert services agencies may provide on their IPS entries ([13.116])

Rearranged the references to guidance from other agencies about publishing information on the web ([13.117])

Provided information about agencies' current IPS statistical reporting obligations as of July 2011 and removed references to superseded proposed reporting obligations ([13.137]).

Amended to reference the latest version of the Attorney-General Department's Intellectual Property Manual ([13.140]).

v1.1 28 October 2011 to 28 June 2012

Updated regarding commencement of the IPS ([13.1] and [13.12]).

Updated regarding the publication of the Principles on Open Public Sector Information ([13.10]).

Stylistic changes to references to FOI Guidelines.

Original 21 April 2011 to 27 October 2011

Part 14: Disclosure log

Current version

1.710 March 2022 to ...

Updated to ensure consistency with the findings and recommendations of the Disclosure Log Desktop Review Report and the objects of s 11C(3) of the Act, including advice that agencies and ministers should:

  • make all documents released in response to FOI requests available for download from the disclosure log or another website ([14.7])
  • include a description of the subject matter and document type where the document is not published ([14.43]-[14.44])
  • consider publicising disclosure logs through online channels ([14.58]).

Additional guidance on unreasonable disclosure of personal information ([14.25]).

Additional guidance on providing released documents in accessible formats ([14.61]-[14.66]).

Previous versions

v1.618 January 2019 to 10 March 2022

Updated to reference the Freedom of Information (Disclosure Log – Exempt Documents) Determination 2018.

v1.53 October 2014 to 17 January 2019

Minor stylistic changes throughout.

Explained how disclosure log requirements apply in cases where the applicant receives access only to some requested documents ([14.12]).

Removed references to review of disclosure log activity ([14.53], [14.71]).

Revised and expanded discussion about accessibility and electronic redaction ([14.62], [14.64]–[14.66]).

v1.46 March 2014 to 2 October 2014

Minor updates to align with new disclosure log determination [14.13]-[14.17].

Minor amendments to [14.71] and footnote to fix out-of-date annual reporting discussion.

v1.325 January 2013 to 5 March 2014

Stylistic changes to website references throughout document.

Expanded discussion on supplementing the disclosure log where the information originated from internal working papers or other documents not representing the views of the agency, minister or the Government ([14.36]).

Updated discussion of disclosure log discoverability to include reference to the revised Guidance for agency websites: 'Access to information' web page ([14.53]).

v1.229 June 2012 to 24 January 2013

Stylistic changes and rearrangement of content throughout document – key changes discussed below.

Included reference to Disclosure Log Determination No. 2011-1 (Exempt Documents) ([14.13]).

Added more discussion about what constitutes ‘unreasonable publication' on the disclosure log ([14.15]–[14.19]).

As part of the above update, included advice about consultation with affected staff where potential harm could arise from publishing their names in information released on the disclosure log ([14.18]).

Discussed in greater detail considerations about the timing of disclosure log publication ([14.21]–[14.27]).

Updated to state the Information Commissioner's preference to release the same information provided to applicants through the disclosure log wherever it is practicable to do so, and to make the information available for direct download ([4.30]–[14.31]).

Included additional discussion about the copyright status of agency disclosure logs and referred to the latest version of the Attorney-General Department's Intellectual Property Manual ([14.38]).

Expanded discussion of accessibility of online content as it applies to the disclosure log ([14.60]–[14.63]).

Updated regarding statistics agencies and ministers will be required to provide the OAIC about their disclosure log activity ([14.71]).

v1.128 October 2011 to 28 June 2012

Addition of guidance regarding publication of telephone numbers of officers and publication of edited versions of documents on the disclosure log ([14.10] and [14.11]).

Paragraph numbers from [14.10] renumbered.

Updated regarding Norfolk Island amendments ([14.18], [14.19], [14.21]).

Updated regarding commencement of the IPS ([14.59]).

Stylistic changes to references to FOI Guidelines.

Original21 April 2011 to 27 October 2011

Part 15: Reporting

Current version

v1.525 January 2018 to ...Renumbered and updated regarding agencies’ and minister’ obligations to provide FOI information and statistics in accordance with section 8 of the Freedom of Information (Prescribed Authorities, Principal Offices and Annual Report) Regulations 2017.

Previous versions

v1.43 October 2014 to 24 January 2018Minor stylistic changes throughout.
v1.36 March 2014 to 2 October 2014Deletion of former [15.3] relating to reporting of the operation of the Privacy Act 1988 and out-of-date reference to the ‘Personal Information Digest’.
v1.210 May 2012 to 5 March 2014Updated annual report requirements and removal of transitional arrangements for 2010–11.
v1.111 May 2011 to 9 May 2012Renumbered and updated regarding the IPS and s 9 statements.
Original15 March 2011 to 10 May 2011Originally published as Part 14.

Glossary

Current version

v1.32 October 2014 to ...Terms added.

Previous versions

v1.26 March 2014 to 2 October 2014Terms added and superseded terms removed.
v1.128 October 2011 to 5 March 2014Terms added.
Original4 February 2011 to 27 October 2011

Guidance for agency websites

Original23 March 2011 to 11 September 2012Guidance superseded (see Guidance for Agency Websites: ‘Access to Information’ Web Page).