What are agencies’ obligations with regard to Commonwealth contracts?
Agencies must ensure that Commonwealth contracts entered into on or after 1 November 2010 contain measures that enable them to obtain certain documents from a contractor or sub-contractor to answer an FOI access request. See Part 2 of the Guidelines and Documents Held by Government Contractors: Agency Obligations under the Freedom of Information Act 1982.
What contracts are covered?
FOI Act applies to documents created or held by contractors or subcontractors who provide services on behalf of an agency to the public or third parties. It does not apply to contracts for the provision of services to the agency, such as information technology services or cleaning services. See Part 2 of the Guidelines and Documents Held by Government Contractors: Agency Obligations under the Freedom of Information Act 1982.
What should an agency do if a contractor will not comply with their contractual obligation to provide access to documents?
Contractors who do not comply with such measures will be in breach of their contract. Agencies should seek legal advice on options available to them. See Part 2 of the Guidelines and Documents held by Government Contractors: Agency Obligations under the Freedom of Information Act 1982.
Can an agency refuse a request for access to a document if they have not received it from a contractor?
Yes. An agency can refuse a request for access if they have taken contractual measures to ensure they receive a document from a contractor and have taken all reasonable steps to ensure they receive the document, but have not received the document from a contractor. See s 24A(2) of the FOI Act and Part 3 of the Guidelines.