Part B: Key features of the Freedom of Information Act

5. Scope of application of the FOI Act

The FOI Act provides that ‘every person has a legally enforceable right to obtain access ... to a document of an agency [and] an official document of a Minister’ (s 11) unless the document is exempt. This chapter explains those three key terms - agency, minister and document - that define the scope of application of the FOI Act. It also outlines the coverage of government contractors under the Act.

Government agencies

Most Australian Government agencies are subject to the FOI Act, including:

• all departments of the Australian Public Service
• an agency that is a ‘prescribed authority’, which includes agencies established under an enactment or Order-in-Council (other than incorporated companies) and bodies declared by regulation
• a Norfolk Island authority.

The Act contains a detailed definition of statutory bodies and office holders that are to be treated either as separate agencies, or as part of another agency. A complete list of agencies subject to the operation of the Act is given in the annual report on the FOI Act.[46]

Some Australian Government agencies are expressly excluded from the operation of the Act. The list includes Aboriginal Land Councils and Land Trusts, the Auditor-General, Australian Government Solicitor, the Australian Industry Development Corporation and security intelligence agencies such as the Australian Secret Intelligence Service (ASIS), the Australian Security Intelligence Organisation (ASIO), the Inspector-General of Intelligence and Security (IGIS) and the Office of National Assessments (ONA).

Some agencies are exempt in relation to particular documents - for example, the Australian Broadcasting Corporation and Special Broadcasting Service are exempt in relation to their program material; Australia Post, Comcare, CSIRO (Commonwealth Scientific and Industrial Research Organisation) and Medicare in relation to their commercial activities; and the Reserve Bank of Australia in relation to its banking operations and exchange control matters.

The Act applies to courts only in relation to documents that concern matters of an administrative nature, and not to documents relating to the judicial role of a court in conducting proceedings and deciding cases before it. Similarly, the Official Secretary to the Governor-General is subject to the Act only in respect of matters of an administrative nature and not functions discharged by the Governor-General under the Constitution or an enactment.

All agencies and ministers are exempt from the operation of the Act in relation to ‘intelligence agency documents’ (for example, a document originating with, or received from, ASIO or ONA) and ‘defence intelligence documents’. These are documents that originated with, or were received from, the Department of Defence and relate to the collection, reporting or analysis of operational intelligence; or special access programs under which a foreign government provides restricted access to technologies. This exemption also applies to those parts of documents that contain a summary of, or information from, an intelligence document or a defence intelligence document.

Ministers

The FOI Act treats a minister’s office as being separate from the portfolio department. A minister’s office is thus responsible for processing FOI requests that are directed to the minister, and for making a decision on a request. The same applies to parliamentary secretaries.

The Act applies to an ‘official document of a minister’ (s 11). This means documents relating to the affairs of an Australian government agency, and not documents of a personal or party political nature or relating to the minister’s electorate affairs.

The Act applies only if the document is ‘in the possession of the Minister’, including a document that has passed from the minister’s possession ‘if he or she is entitled to access the document and the document is not a document of an agency’ (s 4). The effect of that provision is that a request cannot be made under the FOI Act to a former minister. Any records transferred by a former minister to the National Archives of Australia will be available under the Archives Act when the open access period is reached.

It is open to a minister to seek advice and assistance from a portfolio department in dealing with an FOI request. The minister’s office can transfer a request to another agency if the agency also holds the relevant documents or the request relates more closely to its functions.

Government contractors

The FOI Act applies to some documents created or held by contractors or subcontractors who provide services to the public or third parties on behalf of agencies. If an agency receives a request for access to a document held by a contractor to which the Act applies, the agency is to take action to obtain a copy of the document from the contractor, and then decide whether access is to be given to the document under the FOI Act.

To implement this principle, agencies are required to ensure that all applicable contracts entered into after 1 November 2010 include a clause that enables the agency to obtain relevant documents from the contractor or subcontractor, when an FOI request is received by the agency. As noted above, this requirement only applies to contracts relating to provision of services on behalf of an agency to the public or a third party. It does not apply to contracts for the procurement of services for the agency’s use, such as information technology services or cleaning services provided to the agency. The Information Commissioner has published a model clause and guidance material to assist agencies in meeting this requirement.[47]

Documents

The right of access conferred by the FOI Act applies to documents, not information. However, some provisions of the Act do refer to information. The declared object of the Act is to foster public access to ‘information held by the Government’ (s 3). Agencies are required as part of the IPS to publish ‘information in documents to which the agency routinely gives access’ and to maintain a disclosure log of ‘information in accessed documents’. Some exemptions in the Act also refer to information, such as the exemption applying to the ‘unreasonable disclosure of personal information’, information communicated in confidence by a foreign government, and commercially valuable information.

‘Document’ is defined broadly in the Act as including any paper or other material on which there is writing or a mark, figure or symbol; electronically stored information; maps, plans, drawings and photographs; and any article from which sounds, images or writing are capable of being reproduced. However, ‘document’ does not include material retained for reference purposes that is otherwise publicly available (for example, library books) or Cabinet notebooks.

It is apparent from that definition that the term ‘document’ extends to draft letters and papers that have not been destroyed; personal correspondence on agency files; personnel files of agency staff; diaries and calendars; post-it notes; file covers; card indexes; information stored on computer hard-drives or servers; laptop computers and portable storage devices used by agency staff (such as CD-ROMs, USB sticks, personal mobile devices); emails; DVDs; sound recordings; films and video footage; and microfilm.

The FOI Act applies to a document of an agency if it is ‘in the possession of the agency, whether created in the agency or received in the agency’ (s 4). The Act thus applies to documents (or information in documents) received from third parties, including state and foreign governments, and documents an agency has downloaded from an external website or shared database.

A document can be ‘in the possession’ of an agency even though the agency does not have physical possession. An example is where an agency’s information is stored on a server or information database that is managed on its behalf by another agency or external service provider. Similarly, the FOI Act provides that a document transferred by an agency to the National Archives of Australia is deemed to remain in the agency’s possession until the document reaches the open access period, at which time a request for the document should be directed to the Archives.

The FOI Act does not apply to some Australian Government records that are accessible to the public under other arrangements. This applies to the library, historical and museum collections of the Australian War Memorial, National Library of Australia, National Museum of Australia, National Archives of Australia and the National Film and Sound Archive.

6. Requests under the FOI Act

When a person makes an FOI request, a number of issues may need to be addressed by the agency. They include:

• assisting an applicant, where necessary, to meet the requirements of the FOI Act when making a request
• consulting a third party who may be affected by disclosure of requested documents
• transferring a request to a more appropriate agency
• notifying and imposing a charge for access to a document
• granting or refusing access to a document and providing the reasons for the access decision.

In processing an FOI request, agencies must operate within the timeframes set out in the FOI Act. This chapter explains these processes and agency obligations under the FOI Act. (References in this chapter to an ‘agency’ include a minister unless stated otherwise.)

Who can make an FOI request

The FOI Act states that ‘every person’ has a legally enforceable right to obtain access to documents under the Act. The person making the request does not have to be an Australian citizen or resident, nor be in Australia at the time of making the request. A request can also be made by a company, an organisation or a state government agency.

In principle, all people have an equal right of access. The FOI Act states that a person’s right of access is not affected by any reason they give for seeking access, or the agency’s belief as to why the person is seeking access. As that implies, an agency should not ask a person why they are seeking access or what they intend to do with any documents they receive.

In practice, there are situations in which a person’s identity is relevant to whether access will be granted. A person is more likely than other members of the public to be granted access to documents that contain their own personal information; and a business is more likely than others to be granted access to documents that contain information about its commercial or financial affairs. It may be appropriate in that setting for an agency to elicit information about the applicant’s identity (or whether another person has authorised the applicant to obtain documents on their behalf), but it is important that the enquiry goes no further than is necessary to establish the person’s identity.

How to make a request

Five requirements must be met for a request to qualify as a request under the FOI Act.

• Written request: The request must be in writing. Many agencies have a pro forma request form on their website.
• FOI flag: The request must state that it is an application made under the FOI Act. Agencies should take a flexible approach when assessing whether an applicant has met this requirement.
• Documents described: The request must describe the document that is being sought. The description need not be precise: the FOI Act requires only that the request ‘provide such information ... as is reasonably necessary to enable a responsible officer’ of the agency to identify the document.
• Return address: The request must provide an address (which may be an email address) to which notices may be sent by the agency to the applicant.
• Sent to agency: The applicant must send the request to the agency, either to a postal address provided in a current telephone directory, by hand delivery to such an address, or electronically by email, facsimile or online lodgement. Many agencies have provided an online lodgement facility on their web site.

An FOI applicant does not have to disclose his or her identity; a pseudonym can be used, or one person can make a request on behalf of another. As noted earlier, identity can become important where a person is, for example, requesting access to a document that contains personal information.

An agency has a duty to provide reasonable assistance to a person to make a request that meets those five FOI Act requirements. This duty does not extend to ministers, but ministers’ staff are urged to adopt a similar approach. Assistance from agencies should be provided as needed, either before a request is made or after an incomplete request is received. The assistance can be provided informally by telephone, or in writing by email or letter.

An agency has two further obligations. One is to provide reasonable assistance to a person to direct their request to the appropriate agency. Agencies and ministers must also consult with an applicant before refusing a request on the basis that it does not adequately identify the documents being requested or would substantially and unreasonably divert the resources of the agency from its other business.

A request that does not meet the FOI Act requirements can still be handled by an agency outside the FOI Act. However, if a person’s request is not treated as an FOI request, they are not entitled to seek Information Commissioner review of the agency’s access decision. If the person’s intention is unclear, the agency should contact them to confirm whether they wish their request to be handled as an FOI request.

Timeframes for dealing with requests

The FOI Act stipulates the following timeframes for dealing with a request:

• Notifying receipt of request: Upon receiving a request an agency must as soon as practicable, but within 14 calendar days, take reasonable steps to notify the applicant that the request has been received. The notification can be provided by email if the applicant supplied an email address.

  A request is received on the day it arrives at the agency - for example, the day on which the request is received by email or by post. The period of 14 days for notifying the applicant commences on the day after receipt, and ends at midnight on the 14th day (or, if that is a weekend or public holiday, at midnight on the next business day). In effect, an agency has a minimum of 14 full calendar days in which to notify an applicant that the request was received.

  The 14 day period does not start running until the request complies with the five requirements listed above. An agency is expected to act promptly to notify an applicant that a request does not comply, and to use direct methods such as telephone or email to resolve any simple deficiency.

• Notifying decision: The agency must notify the applicant of its decision as soon as practicable, but within 30 calendar days after the day on which the request is received. If a decision is not notified in this period and the period has not been extended as set out below, the agency is deemed to have made a decision refusing to provide access. The applicant may then seek Information Commissioner review of the agency’s deemed refusal decision. Furthermore, the agency cannot later impose a charge for providing access.
• Providing access: If the agency decides to provide access to documents in response to a request, access must be provided as soon as reasonably practicable after the applicant has been notified of the decision, the applicant has paid any charges for access set by the agency and any opportunities a third party has to seek review of the decision to grant access have run out, as explained below. The agency is not required to provide access within the statutory processing period. However, an applicant may complain to the Information Commissioner about unreasonable delay by an agency in providing access.

There are six ways that the 30 day processing period is or can be extended:

• Consultation: An agency may extend the period for 30 days to enable it to consult an affected third party or a State or foreign government or organisation as part of deciding whether a document covered by a request is exempt. This consultation mechanism is explained in more detail below. The applicant must be notified of an extension decision.
• Agreement: An applicant may agree in writing to extend the processing period for up to 30 days. The agency must notify the Information Commissioner of any such agreement. This avenue applies even where the period has been extended for 30 days to facilitate consultation with a third party.
• Information Commissioner extension – complex and voluminous requests: An agency may request that the Information Commissioner extend the processing period on the basis that the request is complex or voluminous. The request must be made within the initial processing period (which will be 30 days if there has been no extension; 60 days if consultation is occurring; or up to 90 days if an applicant has agreed to a further extension). The Information Commissioner may extend the processing period for 30 days, or such shorter or longer period as the Commissioner considers appropriate. The Commissioner is to notify the applicant and the agency of a decision as soon as practicable. An agency can, within the extended period, apply to the Commissioner for a further extension.
• Information Commissioner extension - deemed decisions: If an applicant has applied to the Information Commissioner for review of an agency’s deemed refusal decision, the agency may apply to the Commissioner for further time to make a decision on the request. The Commissioner may grant an extension, subject to any conditions considered appropriate. This avenue is available only once.
• Settling a charge: If an agency notifies an applicant during the processing period (including an extended period) that a charge is payable, the period is suspended until the charge or a deposit is paid. If the applicant does not agree to pay the charge within 30 days or such further period allowed by the agency, or does not contend the charge, the FOI request is taken to have been withdrawn.
• Clarifying scope of request: Before refusing a request on the basis that it does not adequately identify the documents requested, or that processing it would substantially and unreasonably divert the resources of the agency from its other business, an agency must consult with the applicant. The processing period is suspended from the day the applicant is given written notice until they respond in writing by withdrawing or revising the request, or indicating they do not wish to change the request. Unless an agency decides otherwise, an applicant must respond within 14 days.

Consultation with third parties

An agency should consult with a third party before deciding to grant access to a document, in the following circumstances:

• with a business or a person – if they are likely to contend that the document is exempt under the exemption for trade secrets and commercially valuable information, or under the conditional exemption for business, commercial, financial and professional affairs
• with a person – if they are likely to contend that the document is exempt under the conditional exemption for personal privacy
• with a State government – if the document requested (or information therein) originated with the State; the State is likely to contend that the document is exempt under the conditional exemption for Commonwealth-State relations; and a consultation arrangement has been entered into between the Commonwealth and the State[48]
• with a foreign government or organisation - if disclosure of the document could damage the Commonwealth’s international relations or would divulge information communicated in confidence by the foreign government or organisation.

In each case: the FOI processing period is extended by 30 days if the agency decides to undertake consultation; the FOI applicant must be notified that consultation is occurring; and the third party will not generally be told the applicant’s name, unless the applicant agrees or the name is disclosed in a subsequent review of the agency’s decision. However, other aspects of the consultation procedure differ in each case.

A person or business need only be consulted if it is reasonably practicable to consult them and they are likely to contend that the document relating to them is exempt. The time limit for processing requests is a relevant factor in deciding whether consultation is reasonably practicable. Another relevant factor is whether the information is already well known or publicly accessible from other sources.

If consultation is offered, the person or business must be given a reasonable opportunity to make a submission. The decision to grant access or to apply an exemption rests with the agency. The third party must be notified in writing if the agency decides to grant access, and has the right to apply for internal review of the agency’s decision and Information Commissioner review (internal review is not available for a decision made by a minister or personally by the head of the agency). A third party who is dissatisfied with the outcome of an Information Commissioner review may seek an AAT review. Access cannot be granted until the time has expired for the third party to exercise those review rights, or a review application is finalised and is unsuccessful. Alternatively, if the agency decides not to grant access and the applicant seeks Information Commissioner review of that decision, the third party is to be notified and can be joined as a party in the Information Commissioner review process.

The same procedure applies to consultation with a State government, with one variation. Consultation with a State government is required only if an arrangement to that effect has been entered into between the Commonwealth and the State. The agency must not decide to grant access unless consultation has occurred in accordance with that arrangement.[49]

A less extensive procedure applies for consultation with foreign governments and organisations. The agency has a discretion to decide if consultation is appropriate. The foreign government or organisation does not have a right to apply for review of a decision by the agency to grant access.

Transferring a request

An agency may transfer a request for access to another agency, in three situations:

• where the document requested is in the possession of the other agency, but not the agency receiving the request
• where the subject matter of the document is more closely connected with the other agency’s functions
• where the document originated in, or has been received from, an agency that is excluded wholly or partly from the operation of the FOI Act (for example, ASIO or Australia Post) and is more closely connected with that other agency’s functions.

In the first two instances the other agency must agree to the transfer of the request.

The statutory processing period continues to run from the day on which the request was first received by an agency. It is therefore important that consultation about transferring a request occurs early between agencies so that a decision can be made within the statutory processing period.

Part of a request may be transferred - for example, where only some of the requested documents are in the possession of the other agency. Both agencies must then make a separate decision on their part of the request and notify the applicant accordingly.

The agency that first received the request must notify the applicant of a transfer. An exception applies if the fact of the transfer (for example, to a security intelligence agency) would itself disclose exempt information. The agency receiving the request can refuse it without confirming or denying that the requested document exists.

A minister’s office, as noted earlier, can seek advice and assistance from an agency in processing a request. A minister may also authorise someone in the agency to make a decision on their behalf. This is distinct from a decision by the minister to transfer the request to the agency, which may only be done in accordance with the requirements outlined above.

Granting a request for access

An agency is required to provide access to a document upon request, unless one of the reasons considered below under ‘Refusing a request for access’ applies. Access is to be granted as soon as reasonably practicable after the applicant is notified of the agency’s decision (often the two will be simultaneous if no third party review rights apply).

An applicant can request that access be given in one of the following forms:

• inspection of the document
• a copy of the document
• hearing or viewing an audio or visual recording
• providing a written transcript of an audio recording or a document written in code.

An agency must provide access in the form the applicant requested, unless this would interfere unreasonably with the agency’s operations, jeopardise the physical preservation of a document, or infringe a third party’s copyright. Where an alternative form of access is given, an agency may not impose a higher charge than if access had been given in the form the applicant requested.

As a practical matter, it is likely that agencies will increasingly provide access by electronic means - for example, by emailing a PDF copy of the documents.

The way in which agencies store and manage their information should not operate as an obstacle to access under the FOI Act. Indeed, the Act allows an applicant to request that information stored on a computer be made available in written form, provided this does not substantially and unreasonably divert the resources of the agency from its other operations. The increasing shift towards creating and storing information in electronic format requires agencies to take reasonable steps to give applicants access to information that is not in written form.

Information held on servers, hard disks, portable drives, mobile phone devices and mobile computing devices are potentially subject to access under the FOI Act. Agencies should develop guidelines and procedures for the efficient storage and retrieval of such information.

Beyond those examples, an agency is not required to create a new document to satisfy an FOI request. However, it may sometimes be simpler and more effective to do so. An example is where information can easily be compiled from a database to answer a specific request, rather than providing many separate documents with extensive deletions. More generally, an agency should be ready to discuss with an applicant whether information or an answer to a question will satisfy a request more effectively or cheaply than providing access to a range of documents that are not self-explanatory.

Deferring access

An agency may defer giving access to a document in response to an FOI request in the following circumstances:

• if the document is required to be published by law - until the end of the period in which the document is required to be published
• if the document has been prepared for presentation to Parliament or to a particular person or body - until the end of a reasonable period for it to be presented
• if the premature release of the document would be contrary to the public interest - until the occurrence of any event, or the end of any time period, after which the document’s release would not be contrary to the public interest
• if a minister considers the document is of such general public interest that the Parliament should be informed first of the contents of the document - until the end of five sitting days of either House of Parliament.

An agency must tell the applicant the reasons for deferring access and, as far as possible, indicate how long the deferment period will be. A decision to defer access to a document is a decision that is reviewable by the Information Commissioner.

Refusing a request for access

The policy of the FOI Act is that access to documents should be granted wherever possible. This policy is reflected in the objects clause in the Act, in the public interest test that is an element of many exemption provisions, and in the statement in the Act that it does not limit or restrict agencies giving access to documents, even if an exemption could be claimed.

Access can be refused only on a ground stated in the Act (called an ‘access refusal decision’). The grounds include:

• The request did not meet the requirements of the FOI Act - for example, the request was not made in writing or did not adequately describe the documents requested. Agencies should, however, be mindful of their obligation to take reasonable steps to assist a person to make a request that complies with the formal requirements of the FOI Act.
• The agency has taken all reasonable steps to locate the requested document but has determined that it cannot be found or does not exist.
• The work involved in processing the request would substantially and unreasonably divert the agency’s resources or substantially and unreasonably interfere with the performance of the minister’s functions.
• The agency and applicant have failed to agree on a charge for access.
• The document requested is an exempt document. (See Chapter 7 of this Guide for further information.)
• The document requested is a conditionally exempt document and providing access at that time would, on balance, be contrary to the public interest. (See Chapter 7 of this Guide for further information.)
• The document requested is an official document of a minister that contains some matter not relating to the affairs of an agency or a Department of State.
• The request is made to an agency that is excluded (wholly or partly) from the operation of the FOI Act, or the request relates to a document that originated with an agency that is excluded.

An applicant who is dissatisfied with an agency’s access refusal decision can apply either for internal review or Information Commissioner review of that decision. (See Chapter 9 of this Guide for further information.)

Reasons for refusing access

An agency must provide a statement of reasons if a request for access to a document is refused or if access is deferred. This applies to original decisions and to internal review decisions. Providing good statements of reasons can lead to greater acceptance of decisions and a reduction in complaints and requests for review.

If the public interest test has been applied, in deciding that a document is conditionally exempt, the decision maker must indicate what public interest factors were considered.

In some limited circumstances, an agency may refuse to confirm or deny the existence of the requested document, while noting that if such a document did exist, it would be exempt. This approach may apply, for example, to documents relating to a covert criminal investigation where public knowledge of the existence of the investigation may, in and of itself, be revelatory and potentially damaging.

The notice of decision must include the name and designation of the decision maker, and information about review rights.

In a review the Information Commissioner may require a decision maker to provide a statement of reasons if it was not given, or if the Commissioner considers it was inadequate. An applicant may also apply to the AAT for a declaration that a statement of reasons provided to them does not contain adequate particulars of, for example, findings on material questions of fact or the reasons for the decision. If the AAT makes such a declaration the decision maker is required to provide those particulars to the applicant within 28 days.

If an edited copy of a document is provided, the decision maker must indicate the grounds for deletions, including why any part is exempt.

Charges

An agency or minister has a discretion to impose or not impose a charge for access to a document, though no charge may exceed the charges set out in the Freedom of Information (Charges) Regulations 1982 (the Charges Regulations). When determining the appropriate charge, the agency or minister should take account of the ‘lowest reasonable cost’ objective, stated in the objects clause of the FOI Act.

Below is a table of charges that can be imposed by an agency. As the table indicates, a charge can be imposed for the staff time and resources expended in processing an FOI request for a document, and for postage, photocopying, or reducing information to a written document. Other important principles are that that there is no application fee for making a request for documents, for amendment of personal records, or for seeking internal review or review by the Information Commissioner; the first five hours of decision making time are free; and an agency may impose a lower charge than set out in the Charges Regulations. Application fees apply for requests for review by the AAT, unless the applicant is exempt or the Registrar waives the fee on grounds of financial hardship.

If the agency or minister assesses that a charge is liable to be paid, the agency or minister must give the applicant a written notice setting out the estimated charge and any deposit the applicant might need to pay. The applicant must notify the agency or minister within 30 days if they agree to pay the charge, consider the charge should be reduced or not imposed, or withdraw the request. The agency or minister can agree to extend the 30 days. If they do not receive the written notice within the 30 days (or the time as agreed) the request is taken to be withdrawn.

If a person contends that a charge should be reduced or not imposed, the agency or minister must decide within 30 days whether to agree to this request or not. The agency or minister must take into account whether payment of the charge would cause financial hardship to the applicant, and whether giving access to the document in question is in the general public interest or in the interest of a substantial section of the public. If no decision is made within 30 days, it is taken to be a refusal. A person can seek internal review or Information Commissioner review on a decision not to reduce or not to impose a charge.

The time period for processing an FOI request is suspended from the time an applicant receives notice of a proposed charge to the time the applicant pays the charge (or a deposit, or a reduced charge if that is agreed) or a decision is made that no charge is payable.

Protections when access to documents is given

The FOI Act provides a range of protections against civil and criminal liability for the Commonwealth, ministers, agencies and agency officers who give access to documents, in good faith, if required or permitted by the FOI Act or otherwise. Similarly, a person is not liable to any action for defamation, or breach of confidence, because they have supplied a document to an agency or minister and access to the document is given.

7. Exemptions

There are two broad classes of documents that may be exempt from disclosure under the FOI Act:

• exempt documents (such as documents affecting national security, defence or international relations, Cabinet documents or documents affecting law enforcement and protection of public safety)
• conditionally exempt documents, where access is conditional upon meeting a public interest test (such as documents affecting Commonwealth-State relations or documents that are used for deliberative processes).

Exempt documents

The first class of exempt documents are not required to be disclosed in response to an FOI request. Nevertheless, a decision maker has a discretion to disclose the documents where no other law prohibits their release. The following types of documents are exempt.

Documents affecting national security, defence or international relations

A document is exempt if its disclosure would, or could reasonably be expected to, cause damage to Australia’s security, defence, or international relations. It is also exempt if its disclosure would divulge any information communicated in confidence by, or on behalf of, a foreign government, an authority of a foreign government, or an international organisation. Where the matter involves a foreign government, an authority of a foreign government, or an international organisation, the agency or minister may consider it appropriate to consult them. This consultation extends the statutory timeframe for making a decision by 30 days.

Cabinet documents

A document is exempt if it has been, or is or was proposed by a minister to be, submitted to Cabinet, and it was created for the main purpose of being submitted to Cabinet for consideration. Documents created primarily to brief a minister on such a submission, or proposed submission, and official records of the Cabinet are also exempt documents. Documents that would disclose Cabinet deliberations or decisions are also exempt, unless the existence of the deliberation or decision has been officially disclosed.

Documents affecting law enforcement and protection of public safety

A document is exempt if it would, or could reasonably be expected to, prejudice a law enforcement investigation; disclose the existence or identity of a confidential source; endanger the life or physical safety of a person; prejudice the fair trial of a person; disclose lawful methods for protecting public safety; or disclose lawful methods for preventing, detecting or investigating possible breaches of the law and which would prejudice their effectiveness.

Documents to which secrecy provisions of enactments apply

Ordinarily, secrecy provisions in other legislation do not operate, in the context of the FOI Act, to prevent disclosure of documents if disclosure is required under the Act. However the FOI Act preserves the operation of some specific secrecy provisions in other legislation, as outlined in a Schedule to the Act. The specified secrecy provisions operate as an exemption for the purposes of the FOI Act. This exemption does not apply where the document contains personal information about the applicant, except with respect to documents covered by some secrecy provisions in the Migration Act 1958.

Documents subject to legal professional privilege

Documents that are subject to legal professional privilege are exempt documents. Legal professional privilege is a rule of law that protects the confidentiality of communications between a lawyer and his or her client. This exemption does not apply if the person entitled to claim legal professional privilege has waived that claim.

Documents containing material obtained in confidence

A document is exempt if its disclosure under the FOI Act would found an action by a person (other than an agency or the Australian Government) for breach of confidence. This section applies where a person who has provided confidential material to an agency could initiate a breach of confidence action against that agency, if the agency disclosed the material.

Documents the disclosure of which would be contempt of Parliament or court

A document is exempt if its public disclosure would be in contempt of court; be contrary to an order made by a Royal Commission or a tribunal or other person or body having power to take evidence on oath (for example, the Information Commissioner or the AAT); or infringe the privileges of the Australian Parliament, the House of Representatives or the Senate, or a Parliament or House of a Parliament of one of the states or territories, including Norfolk Island.

Documents disclosing trade secrets or commercially valuable information

A document is exempt if its disclosure would disclose trade secrets or other information having commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed. The agency or minister must consult with the relevant person or organisation if it appears that they might reasonably want to contend that the document is exempt. This consultation extends the statutory timeframe for making a decision by 30 days. (This exemption does not apply where the trade secrets or commercial information concerns the person making the application or an organisation or business on behalf of which the person is making the application.)

Electoral rolls and related documents

An electoral roll, a document setting out particulars of an elector and that was used to prepare an electoral roll, and copies of such documents are exempt. This exemption does not apply to that part of the roll, or a document setting out the particulars of an elector, where the elector is the FOI applicant.

Public interest conditional exemptions

The second class of exemption applies to conditionally exempt documents - that is, its exemption is conditional upon meeting a public interest test. Access must generally be given to a conditionally exempt document unless disclosure would be contrary to the public interest at the time of decision. The following types of documents are conditionally exempt.

Documents affecting Commonwealth-State relations

A document is conditionally exempt if its disclosure would, or could reasonably be expected to, cause damage to the relations between the Commonwealth and a state or territory; or it would divulge information communicated in confidence between the Commonwealth and a state or territory. The agency or minister must consult with the relevant state(s) if it appears that the state might reasonably want to contend that the document is conditionally exempt. This consultation extends the statutory timeframe for making a decision by 30 days.

Documents that are used for deliberative processes (internal working documents)

A document is conditionally exempt if it relates to opinions, advice, or recommendations, or consultation or deliberation that has taken place, as part of the deliberative processes involved in the functions of an agency or minister. This does not include operational information (see Chapter 10 of this Guide), or purely factual material. The exemption also does not cover reports of scientific or technical experts; or the record of, or a formal statement of reasons for, a final decision given in the exercise of a power.

Documents affecting the financial or property interests of the Commonwealth

A document is conditionally exempt if its disclosure would have a substantial adverse effect on the financial or property interests of the Commonwealth or of an agency.

Documents about certain operations of agencies

A document is conditionally exempt if its disclosure would, or could reasonably be expected to, do one of the following things:

• prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency
• prevent the effective conduct of particular tests, examinations or audits conducted by an agency (for example, disclosing the answers to particular test questions before the tests are conducted)
• have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency
• have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

Documents involving personal privacy

A document is conditionally exempt if its disclosure would involve the unreasonable disclosure of personal information about any person, including a deceased person. When considering whether unreasonable disclosure of personal information would result, the decision maker must take into account factors such as the extent to which the information is well known, the availability of the information from publicly accessible sources, and whether the person to whom the information relates is known to be (or have been) associated with the matters dealt with in the document.

The agency or minister must consult with the relevant person (or their legal representative) if it appears that the person might reasonably want to contend that the document is conditionally exempt. This consultation extends the statutory timeframe for making a decision by 30 days. (This exemption does not apply to information in the document that relates to the person making the FOI application. However in some specified circumstances, where the information relates to the FOI applicant, the decision maker may give access to the document to a qualified person such as a medical practitioner or psychiatrist, nominated by the applicant, rather than to the applicant directly.)

Documents involving business affairs

A document is conditionally exempt if its disclosure would disclose information about a person’s business or professional affairs, or an organisation’s business, commercial or financial affairs, and that disclosure would, or could reasonably be expected to, affect the person or organisation adversely in relation to those affairs. This exemption also applies if the disclosure could reasonably be expected to prejudice the future supply of information to the Australian Government for the administration of a law or of matters administered by an agency. The agency or minister must consult with the relevant person or organisation if it appears that the person or organisation might reasonably want to contend that the document is conditionally exempt. This consultation extends the statutory timeframe for making a decision by 30 days. (This exemption does not apply if the information relates to the FOI applicant, whether that is a person, an organisation, or a person acting on behalf of an organisation.)

Documents relating to research by specified organisations

A document is conditionally exempt if it contains information relating to research that is being carried out, or is to be carried out, by an officer of either the Australian National University or the CSIRO, and disclosure of the information before the research is completed would be likely to unreasonably expose the officer or organisation to disadvantage. This exemption does not apply to research carried out by other Australian Government agencies.

Documents affecting Australia’s economy

A document is conditionally exempt if its disclosure would, or could reasonably be expected to, have a substantial adverse effect on Australia’s economy by influencing a decision or action by a person or entity; or by giving a person or group of people an undue benefit or detriment in relation to business they carry on by providing premature knowledge of a proposed or possible action of a person or entity. The definition of a ‘person’ includes a body corporate, and the government of a state or territory. The ‘substantial adverse effect’ can relate to a particular sector of the economy or the economy of a particular region of Australia. This conditional exemption applies to documents relating to currency or exchange rates, taxes, proposals for expenditure, the regulation or supervision of banking and insurance institutions, and so on.

Public interest test

Once a document has met the threshold of being conditionally exempt, then the decision maker must apply the public interest test to assess whether access to the document should be given. Application of the public interest test involves weighing up factors for and against disclosure to determine whether access at the time would, on balance, be contrary to the public interest. In this process a decision maker needs to identify factors favouring disclosure and factors not favouring disclosure, and to determine the comparative importance to be given to these factors.

The Act outlines factors favouring disclosure that must be taken into account in applying the public interest test. These factors are whether access to the document would:

• promote the objects of the FOI Act
• inform debate on a matter of public importance
• promote effective oversight of public expenditure
• allow a person to access his or her own personal information.

The Act also outlines factors decision makers must not take into account in deciding whether access to the document would, on balance, be contrary to the public interest. These factors are:

• access to the document could result in embarrassment to the Australian Government, or a loss of confidence in the Government
• access to the document could result in any person misinterpreting or misunderstanding the document
• the author of the document was (or is) of high seniority in the agency to which the FOI request was made
• access to the document could result in confusion or unnecessary debate.

Although providing access to a document might be contrary to the public interest at a particular time, changes in circumstances may mean that disclosure is not contrary to the public interest at a future time. In this case, a different decision might be made on a new FOI request.

8. Amendment or annotation of personal information

The FOI Act enables people to apply to have records about them amended that they believe are incomplete, incorrect, out of date or misleading. This applies to information that has been used, is being used, or is available for use by an agency or minister for an administrative purpose.

A request for correction or annotation differs from other FOI processes because it applies to ’records of information′ rather than ′documents’. The request is not confined to any particular document but may apply to any record of that information held by the agency or minister, which is being used for an administrative purpose (for example, a date of birth the applicant claims is incorrect).

The right to request amendment or annotation of a document is limited to:

• documents of an agency or official documents of a minister containing personal information about the applicant
• documents to which the applicant already has lawful access
• circumstances where the personal information in the document is incomplete, incorrect, out of date or misleading, and
• circumstances where the personal information has been used, is being used or is available for use by the agency or minister for an administrative purpose.

Requests for amendment of personal information

A request to an agency or minister for amendment of personal information must be in writing and specify an address in Australia to which notices can be sent to the person. The request must be sent to the agency or minister, by giving it to an officer of the agency or a member of staff of the minister at an office of the agency or minister specified in a current telephone directory, or by posting it to that address, or emailing it to an email address specified by the agency or the minister.

As far as practicable, the request must specify

• the document(s) containing the personal information that should be amended
• the information that is claimed to be incomplete, incorrect, out of date or misleading
• whether the information is claimed to be incomplete, incorrect, out of date or misleading
• the reasons why this is claimed
• the amendment requested.

The agency or minister must notify the applicant of their decision within 30 days of receiving the application. Agencies or ministers may apply to the Information Commissioner for a one-off extension of that time period. The Information Commissioner may impose any condition to an extension that he or she considers appropriate. If the agency or minister does not make a decision within the statutory timeframe or the time as extended by the Information Commissioner, this is deemed to be a refusal.

Where an application for amendment is refused, the applicant may apply to have the record annotated so that the record includes a statement outlining their objection. (People can apply at any time for an annotation to a record. They do not have to apply for an amendment before seeking an annotation.)

Requests for annotation of personal information

A request to an agency or minister for annotation of personal information must be in writing and specify an address in Australia to which notices can be sent to the person. The request must be sent to the agency or minister, by giving it to an officer of the agency or a member of staff of the minister at an office of the agency or minister specified in a current telephone directory, or by posting it to that address, or emailing it to an email address specified by the agency or the minister.

As far as practicable, the request must specify the document(s) containing the personal information that should be annotated and be accompanied by a statement by the applicant specifying

• the information that is claimed to be incomplete, incorrect, out of date or misleading
• whether the information is incomplete, incorrect, out of date or misleading
• the reasons why this is claimed
• any other information that would make the information complete, correct, uptodate or not misleading.

Generally, an agency or minister must annotate a record as requested if it is contained in a document of the agency or an official document of the Minister. However, agencies or ministers are not obliged to annotate a record where the agency or minister considers the annotation voluminous, defamatory or irrelevant. The agency or minister may also attach their own comments to an annotation. Thus it is open to an agency or minister to express their view or interpretation of the matter that the annotation deals with.

The agency or minister must give the applicant a written statement of reasons if they decide not to amend or annotate personal records. These decisions can be reviewed internally (unless it is made by the principal officer of the agency or the minister personally) or by the Information Commissioner.

9. Review, complaints and appeals

There two main avenues a person may take to have an access grant decision or access refusal decision reviewed:

• internal agency review
• Information Commissioner review.

Where a person is dissatisfied with a review decision by the Information Commissioner they may apply to the AAT for review. Both the Information Commissioner and the AAT can refer questions of law to the Federal Court of Australia during a review. In some limited circumstances, the Commonwealth Ombudsman can investigate complaints about agency actions on FOI matters.

Internal agency review

An applicant who is dissatisfied with a decision to refuse access to a document or an affected third party who is dissatisfied with a decision to grant access to a document can apply for internal agency review of that decision. If the decision was made by a minister or personally by the principal officer of an agency, internal review is not available. In this circumstance, a person can seek review by the Information Commissioner.

Applications for internal review must be made in writing and, in general, within 30 days of notification of the original decision, unless the agency agrees to an extension.

An internal review must be undertaken by an authorised officer other than the original FOI decision maker. The review decision must be a fresh decision on the merits of the FOI issue. The review decision must be notified within 30 days of the agency receiving the application. If the agency does not make a decision within the statutory timeframe (or as extended by the Information Commissioner), the original decision is deemed to be affirmed. An agency may then apply to the Information Commissioner for a one-off extension to make a decision. If the Information Commissioner agrees, the Commissioner may allow any further time considered appropriate and may apply any conditions considered reasonable.

A person is not required to apply for internal review before applying for review by the Information Commissioner. However, the Information Commissioner considers it is usually better for a person to seek internal review first. Internal review can be quicker than external review and enables an agency to take a fresh look at its original decision and to discuss the matter with the applicant.

Information Commissioner review

A person who disagrees with an agency’s or minister’s decision about access to a document (including a deemed decision) or a decision on a request to amend or annotate a record of personal information, may apply to the Information Commissioner for merit review of the decision.

Types of decisions reviewable by the Information Commissioner

The following types of decisions can be reviewed by the Information Commissioner - a decision:

• to refuse access in full or in part (including a deemed refusal)
• made by an agency on internal review to refuse access in full or in part (including a deemed affirmation of the original decision)
• to defer giving access for a specified time (except where the deferral is to allow Parliament to be informed of the contents of the document before it is made public)
• to give access to a qualified person instead of the applicant (for example, a medical practitioner)
• not to allow extra time to apply for internal review
• to grant access (in this case, the person applying for the review would be the affected third party)
• made on internal review to grant access or a deemed affirmation of a decision to grant access (again, the person applying for the review would be the affected third party)
• to impose a charge for processing an FOI request
• to refuse to amend or annotate a record of personal information.

Review by the Information Commissioner is intended to be informal and non-adversarial. The Information Commissioner does not simply review the reasons given by the agency or minister, but determines the correct and preferable decision in the circumstances. The Information Commissioner has powers to inspect all relevant material, including material that the agency or minister claims is exempt. Agencies are obliged to assist the Information Commissioner in a review, and most matters will be reviewed on the papers rather than through formal hearings.

Applying for Information Commissioner review

To apply for an Information Commissioner review, a person must apply to the Commissioner in writing and give details about how notices can be sent to the person (this can include an email address).

The application should include a copy of the notice of decision given by the agency or minister that the review request relates to, if one has been provided (or, in the case of a deemed decision, details of the respondent agency or minister and whether the decision under review is an original decision or on internal review). Where possible, the request should also indicate the reasons why the person disagrees with the decision.

Applications for review should be made within 60 days of the notice of decision being given to the applicant or the request being deemed to be refused, or 30 days if the applicant for review is an affected third party concerning a decision to grant access. The Information Commissioner may extend this timeframe if satisfied that it is reasonable in the circumstances.

If the Information Commissioner receives a request for a review of a decision about refusing access to a document that involves an affected third party, the agency must, as soon as practicable, take all reasonable steps to notify the third party of the request for review. In some cases this might be the first time the third party has heard about the FOI application, if the original decision was to refuse access and there had been no need to consult the third party. There are some exceptions to this requirement, such as where notification of an affected third party might prejudice the conduct of an investigation into a possible breach of the law.

Information Commissioner preliminary inquiries and grounds for not proceeding with review

The Information Commissioner can undertake preliminary inquiries to determine if a matter should be reviewed. The Information Commissioner may also decide not to undertake a review, or continue a review, where he or she is satisfied that:

• the application is frivolous, vexatious, misconceived, lacking in substance or not made in good faith
• the review applicant has failed to cooperate, or failed to comply with a direction of the Information Commissioner
• the review applicant cannot be contacted
• it is desirable in the interests of the administration of the FOI Act that the review application be considered by the AAT rather than by the Information Commissioner.

In most cases the agency has the onus of establishing why their decision was justified. Agencies must use their best endeavours to assist the Information Commissioner to make the correct and preferable decision in relation to access to documents. However, if the decision being reviewed is about granting access, the affected third party has the onus of establishing why a decision refusing the FOI request is justified.

Powers of the Information Commissioner

The Information Commissioner has the following powers in dealing with a review request:

• The Commissioner can require a person to provide information and/or documents.
• The Commissioner can require a minister or the principal officer of an agency to produce a document claimed to be exempt (with some qualification where the claimed exemption relates to national security or Cabinet matters)
• If an agency or minister cannot find a document, the Information Commissioner may require the agency or minister to conduct further searches.
• The Commissioner can require a person to attend to answer questions and to take an oath or affirmation that the answers given will be true.

A person who gives information or documents to the Information Commissioner, or answers questions, in good faith and as part of a review, is not liable for any civil proceedings should another person suffer injury, damage or loss of any kind. If a document or information is provided for the purpose of the review, this will not waive any subsequent claim for legal professional privilege over the document or information.

If the Information Commissioner proposes making a decision that a document affecting national security, defence or international relations is not exempt, the Commissioner must request the Inspector-General of Intelligence and Security to appear to give evidence on the matter.

Hearings

The Information Commissioner can conduct hearings as part of a review. Hearings are not intended to be a standard part of Information Commissioner reviews, since they can increase contestability, introduce more formality to the process and prolong the matter. A review can be carried out on the documents or other available material if:

• the Information Commissioner considers the matter can be adequately determined
• the Information Commissioner is satisfied that there are no unusual circumstances that warrant a hearing
• none of the parties has applied for a hearing.

Any party may apply to the Information Commissioner for a hearing at any time before a review decision is made, and the Information Commissioner may allow the application. However, the Commissioner must be satisfied there is a special reason to warrant a hearing.

Hearings must be conducted in public unless the Information Commissioner is satisfied there are reasons to hold the hearing (in whole or part) in private.

Timeframe for Information Commissioner review

The time taken to complete a review will depend on a number of factors, including:

• the type and range of issues involved
• the number and type of documents involved
• whether there is a need to refine the scope of the issues the applicant has raised
• whether the agency or minister needs to undertake further searches for documents
• whether parties other than the agency and the applicant need to be consulted or become part of the review
• any new issues the parties have introduced during the review
• the time parties take to respond to requests for information or other issues raised
• the extent to which the parties are willing to engage in informal resolution processes.

The Information Commissioner’s decision on a review is binding on the agency or minister. If the Information Commissioner finds that a document is exempt, the Commissioner cannot order that access be given to that document (whereas an agency or minister always has a discretion to give access to an exempt document).

The Information Commissioner can also recommend that an amendment be made to a record of personal information, subject to two limitations. The Information Commissioner cannot recommend an amendment to a personal record if the record is a record of a decision under legislation by a court, tribunal, authority or person. Nor can the Information Commissioner recommend an amendment to a personal record if that involves the determination of a question that the person applying for the review is, or has been, entitled to have reviewed by the agency (on internal review), the Information Commissioner, a court or tribunal. For example, if a person was seeking to have an amendment made to a record that relates to the determination of a benefit under social security legislation, the Information Commissioner could not recommend an amendment to the record if the person could have, or can, apply for review of that determination (for example, an internal agency review or a review by the Social Security Appeals Tribunal).

AAT review

Most review decisions by the Information Commissioner (including a decision to declare a person a vexatious applicant), can be reviewed by the AAT. However a person cannot apply to the AAT for review of the Information Commissioner’s decision not to undertake or continue a review. A person can also apply to the AAT for review of an agency’s decision if the Information Commissioner has decided that the matter is better reviewed by the AAT. In this case, the decision by the agency or the minister is the decision that the AAT would review.

An application to the AAT must be made within 28 days of the Information Commissioner’s decision being given to the review applicant.

Where the matter being reviewed is the Information Commissioner’s declaration that a person is a vexatious applicant, the Information Commissioner is a party to the proceedings in the AAT. For other decisions (for example, a decision to refuse or grant access to a document) the agency or minister will be a party to the proceedings, and not the Information Commissioner. An agency or minister must notify affected third parties if an FOI applicant seeks AAT review of a decision to refuse access to third party information.

In AAT proceedings to review an FOI decision, the agency or minister who received the access request or the application for amendment of personal records has the onus of establishing that a decision that is adverse to the FOI applicant should be given. If an affected third party is a party to the proceeding, the third party has the onus of establishing that a decision refusing to give access to the document is justified, or the AAT should give a decision adverse to the person who made the request.

More information about review by the AAT can be found at www.aat.gov.au.

Federal Court

Both the Information Commissioner and the AAT can refer questions of law to the Federal Court of Australia during a merit review.

A party to a review also has the right to appeal to the Federal Court on a question of law from a decision of the Information Commissioner or of the AAT. Such an appeal must be made within 28 days of the decision being given, or within any further period that the Federal Court may allow.

More information about the Federal Court can be found at www.fedcourt.gov.au.

Complaints and investigations

The Information Commissioner can investigate agency actions relating to the handling of FOI matters and agency compliance with the IPS, either in response to a complaint or on the Commissioner’s own motion. Such investigations may point to systemic problems in agencies or help identify areas where improvements in FOI handling can be made. The Commissioner cannot investigate the handling of an FOI matter by a minister, but can undertake merit review of the decision.

The Information Commissioner will not investigate a matter as a complaint if the proper remedy is for the person to seek review of the merit of an FOI decision. The complaints process is intended to deal with the manner in which agencies handle FOI requests and procedural compliance matters. Examples might include where there is delay by an agency in processing an FOI request; an agency failed to consult a third party whose interests would be affected before it released a document; an agency continued to insist that an FOI applicant narrow the scope of a reasonable request, or the complaint concerned an alleged conflict of interest by the decision maker.

Making a complaint to the Information Commissioner

To make a complaint to the Information Commissioner, a person must:

• complain in writing, either by post, email or via the FOI complaint form on the OAIC website
• identify the agency about which the complaint is being made.

The complaint should also include some information to indicate what the complaint is about.

Information Commissioner preliminary inquiries and grounds for not proceeding with investigation

The Information Commissioner may make preliminary inquiries to determine whether or not to investigate a complaint. For example, it might be necessary to make such inquiries to determine whether the complaint relates to an action under the FOI Act.

The Information Commissioner may decide not to investigate a complaint until an agency has had the opportunity to address the matter, or if the Commissioner is satisfied that the agency has adequately addressed the complaint. Other grounds for deciding not to investigate a complaint are:

• the complainant has, or had, a right to have the action reviewed by the agency, the Information Commissioner, a court or a tribunal, and has not exercised that right when it would be reasonable to do so
• the complainant has, or had, a right to complain to another body and has not exercised that right when it would be reasonable to do so
• the complaint is frivolous, vexatious, misconceived, lacking in substance or not made in good faith
• the complainant does not have sufficient interest in the subject matter of the complaint.

Powers of the Information Commissioner

A complaint investigation must be conducted in private and in the way the Information Commissioner considers fit. The Information Commissioner has certain compulsory powers, such as requiring the production of information and documents, or requiring a person to attend to answer questions and to take an oath or affirmation. These are the same powers as the Information Commissioner has when undertaking a merit review. The Information Commissioner or an authorised officer also has a limited power to enter the premises of an agency or a contracted service provider if the principal officer of the agency or the person in charge of the service provider agrees.

Giving a document or information to the Information Commissioner in connection with an investigation does not waive any subsequent claim to legal professional privilege over the document or information.

A person is immune from civil proceedings and from criminal or civil penalty if they give information, produce a document or answer a question in good faith for the purposes of an investigation. The protection applies even if no compulsory process was involved. The complainant is also immune from civil proceedings, provided that the complaint was made in good faith.

Investigation results of the Information Commissioner’s complaint investigation

On completing a complaint investigation, the Information Commissioner must notify the agency and the complainant in writing of the outcome. The Information Commissioner’s notification must include the ‘investigation results’, the reasons for those results and the recommendations (if any). The ‘investigation results’ are:

• the matters that were investigated
• any opinion that the Information Commissioner has formed in relation to those matters
• any conclusions that the Information Commissioner has reached
• any suggestions that the Information Commissioner believes might improve the agency’s processes
• any other information of which the Information Commissioner believes the agency should be aware.

The Information Commissioner may make formal recommendations that the Commissioner believes the agency should implement. If the Information Commissioner is not satisfied that the agency has taken adequate appropriate action to implement the recommendations, the Commissioner may subsequently report to the minister responsible for the agency and the minister responsible for the FOI Act. The minister responsible for the FOI Act must table the report in Parliament.

Commonwealth Ombudsman

The Commonwealth Ombudsman may also investigate complaints about agency handling of FOI requests. In the normal course of events, such complaints are likely to be transferred to the Information Commissioner. However, in some circumstances, such as where there are other issues as well as FOI involved, it may be preferable for the Ombudsman to deal with the complaint. The Information Commissioner can transfer complaints to the Ombudsman.

Vexatious applicants

The Information Commissioner may declare a person to be a vexatious applicant, either on the Commissioner’s own initiative or after considering an application by an agency or minister. A vexatious applicant declaration is not an action that will be undertaken lightly by the Commissioner, but its use may be appropriate at times. If an agency or minister applies for a vexatious applicant declaration, they must show clearly and convincingly that the declaration should be made.

The FOI Act sets out the grounds for declaring a person to be a vexatious applicant. The types of behaviour that might lead the Information Commissioner to consider declaring a person to be a vexatious applicant include:

• repeatedly engaging in access actions that involve an abuse of process
• harassing or intimidating an individual or an agency employee
• unreasonably interfering with the operations of an agency
• seeking to use the FOI Act to circumvent restrictions imposed by a court on access to a document or documents.

Such behaviour might occur when the person makes repeated requests for documents, amendment or annotation of personal records, internal review, or merit review by the Information Commissioner. An agency or minister who applies for a vexatious applicant declaration bears the onus of showing that the declaration should be made.

Before making a declaration, the Information Commissioner must give the person concerned an opportunity to make oral or written submissions.

A vexatious applicant declaration must be made in writing and be notified as soon as practicable to the person concerned. The declaration sets the terms and conditions for the effect of the declaration. For example, the declaration might provide that an agency or minister may refuse to consider any request by the person for documents under the FOI Act that are made without the written permission of the Information Commissioner.

A decision by the Information Commissioner to declare a person to be a vexatious applicant can be reviewed by the AAT.

10. Publication requirements

Information Publication Scheme

A new Information Publication Scheme applies to Australian Government agencies that are subject to the FOI Act. The scheme provides a statutory framework for the pro-active publication of information by agencies. The IPS underpins a pro-disclosure culture across government, and transforms the FOI framework from one that was primarily reactive to individual requests for documents, to one that also relies more heavily on agency driven publication of information. The IPS requirements also reflect the objective that information held by government is a national resource to be managed for public purposes.

The IPS requires agencies covered by the FOI Act to:

• publish an agency plan
• publish specified categories of information
• consider proactively publishing other government information.

Agencies must ensure that information published under the IPS is accurate, up to date and complete.

Many agencies highlight the IPS by an icon developed by the OAIC, published on the home page of the agency website.

Agency plan

The IPS requires agencies to publish an information publication plan, describing what information the agency proposes to publish, how the information will be made available and other steps the agency will take to ensure compliance with IPS requirements.

Publication of an agency plan is a continuing obligation. Agencies must ensure that all information the agency publishes under the IPS, including the agency plan, is ‘accurate, up to date and complete’. Agencies should therefore ensure that the agency plan is regularly reviewed and updated where necessary.

The Information Commissioner has published an Agency Plan template, that can be adapted by agencies, in the Guidelines issued under s 93A of the FOI Act 1982 available on the OAIC website.

Publication of specified categories of information

The IPS specifies nine classes of information, in addition to the information publication plan, that agencies must publish on their website. The classes of information that must be published are:

• details of the agency’s organisational structure
• details of the functions of the agency, including its decision making powers and other powers affecting members of the public
• details of appointments of officers within the agency that are made under legislation, other than Australian Public Service employee appointments
• the information in agency annual reports that are laid before the Parliament
• details of arrangements for members of the public to comment on specific policy proposals for which the agency is responsible, including how (and to whom) those comments may be made
• information in documents to which the agency routinely gives access in response to FOI requests, other than in specified cases such as where the information contains personal information and it would be unreasonable to publish the information
• information that the agency routinely provides to Parliament in response to requests and orders from the Parliament
• contact details for an officer or officers who can be contacted about access to the agency’s information or documents under the FOI Act
• the agency’s operational information (information held by the agency to assist it to perform or exercise its functions or powers in making decisions or recommendations affecting members of the public, such as decision making manuals and guidelines).

Other information to be published under the IPS

The FOI Act does not limit or restrict publication of information by agencies, including information that is exempt from disclosure under the FOI Act.

Agencies are generally best placed to identify other information that should be included in the IPS. In doing so, agencies should strive to implement the objects of the FOI Act, which declare that information held by government is a national resource that should be managed for public purposes, and that the Parliament intends to increase scrutiny, discussion, comment and review of the Government’s activities.

Compliance with the IPS

The Information Commissioner is responsible for investigating agency compliance with the IPS and monitoring, investigating and reporting on the operation of the scheme. In addition, each agency, with the Information Commissioner, must review the operation of the IPS within that agency at least once every five years.

Disclosure log listing information released under the FOI Act

Agencies and ministers must publish details of information that has been released in response to each FOI access request, subject to certain exceptions. This publication is known as a ‘disclosure log’. The purpose of the disclosure log is to make available to the world at large information that has been released under the FOI Act.

The disclosure log must be published on an agency’s or minister’s website (and can usually be found through an icon or link on the homepage). The information released under the FOI Act may be published in one of three ways:

• making the information available for downloading from the agency’s or minister’s website (it is common that PDF copies of documents released under the FOI Act are made available)
• linking to another website where the information can be downloaded, or
• giving details of how the information may be obtained (for example, upon written request for a photocopy, for which a copying charge can be).

If publication in a disclosure log would be unreasonable, an agency or minister is not required to publish:

• personal information about any person
• information about the business, commercial, financial or professional affairs of any person
• exempt information that has been released under the FOI Act, or information that would have been exempt had the FOI request been received from a person other than the particular applicant (this last ground of exclusion arises from a determination made by the Information Commissioner under the FOI Act).

An agency or minister can also decline to publish information that would require extensive modification to make it publishable.

Information must be published in a disclosure log within ten working days of access being granted to the FOI applicant. The Information Commissioner has recommended that this issue be raised with applicants, particularly if the applicant may object to publication occurring simultaneously with access being granted. If that does occur, the Commissioner has recommended that consideration be given to reducing or waiving any FOI access charge that would otherwise be imposed on the applicant.

It is open to an agency or minister to place supplementary information on a disclosure log - for example, to point out that a document has been revised and published elsewhere. It is also open to an agency or minister to archive information that was published in documentary form on a disclosure log, provided the disclosure log reference to the information is retained. If copyright restrictions apply to a document published on a disclosure log these should be noted.

Legal protections for IPS and disclosure log publication

The FOI Act provides a range of protections against civil and criminal liability for the Commonwealth, minister, agencies, agency officers who publish information, in good faith, in the belief that publication was either required or permitted under the IPS. Similarly, a person is not liable to any action for defamation, or breach of confidence, because they have supplied a document to an agency or minister and the document is published. Legal protections also apply to the release of information in response to an FOI request, and to publication apart from the FOI Act.

These protections complement the policy objective of the Act, of providing a secure framework for publication of government information to the public. The protections are conditional, and apply only where a minister or agency officer publishes a document in good faith in the belief that the publication was required or permitted under the Act.