link to page 7
ATTACHMENT A
Relevant Legislation
Section 45 - Document containing material obtained in confidence
(1) A document is an exempt document if its disclosure under this Act would found an action, by a
person (other than an agency, the Commonwealth or Norfolk Island), for breach of confidence.
(2) Subsection (1) does not apply to a document to which subsection 47C(1) (deliberative
processes) applies (or would apply, but for subsection 47C(2) or (3)), that is prepared by a
Minister, a member of the staff of a Minister, or an officer or employee of an agency, in the
course of his or her duties, or by a prescribed authority or Norfolk Island authority in the
performance of its functions, for purposes relating to the affairs of an agency or a Department
of State unless the disclosure of the document would constitute a breach of confidence owed
to a person or body other than:
(a) a person in the capacity of Minister, member of the staff of a Minister or officer of an
agency; or
(b) an agency, the Commonwealth or Norfolk Island.
Section 47 - Document disclosing trade secrets or commercial y valuable information
(1) A document is an exempt document if its disclosure under this Act would disclose:
(a) trade secrets; or
(b) any other information having a commercial value that would be, or could reasonably be
expected to be, destroyed or diminished if the information were disclosed.
(2) Subsection (1) does not have effect in relation to a request by a person for access to a
document:
(a) by reason only of the inclusion in the document of information concerning that person
in respect of his or her business or professional affairs; or
(b) by reason only of the inclusion in the document of information concerning the business,
commercial or financial affairs of an undertaking where the person making the request
is the proprietor of the undertaking or a person acting on behalf of the proprietor; or
(c)
by reason only of the inclusion in the document of information concerning the business,
commercial or financial affairs of an organisation where the person making the request
is the organisation or a person acting on behalf of the organisation.
(3) A reference in this section to an undertaking includes a reference to an undertaking that is
carried on by, or by an authority of, the Commonwealth, Norfolk Island or a State or by a local
government authority.
Section 47E - Public interest conditional exemptions—certain operations of agencies
A document is conditional y exempt if its disclosure under this Act would, or could reasonably be
expected to, do any of the fol owing:
(a) prejudice the effectiveness of procedures or methods for the conduct of tests,
examinations or audits by an agency;
(b) prejudice the attainment of the objects of particular tests, examinations or audits
conducted or to be conducted by an agency;
(c)
have a substantial adverse effect on the management or assessment of personnel by the
Commonwealth, by Norfolk Island or by an agency;
(d) have a substantial adverse effect on the proper and efficient conduct of the operations
of an agency.
A1
link to page 7
Section 47F - Public interest conditional exemptions—personal privacy
(1) A document is conditional y exempt if its disclosure under this Act would involve the
unreasonable disclosure of personal information about any person (including a deceased
person).
(2) In determining whether the disclosure of the document would involve the unreasonable
disclosure of personal information, an agency or Minister must have regard to the fol owing
matters:
(a) the extent to which the information is wel known;
(b) whether the person to whom the information relates is known to be (or to have been)
associated with the matters dealt with in the document;
(c)
the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister considers relevant.
(3) Subject to subsection (5), subsection (1) does not have effect in relation to a request by a
person for access to a document by reason only of the inclusion in the document of matter
relating to that person.
…
11B - Public interest exemptions—factors
(1) This section applies for the purposes of working out whether access to a conditional y exempt
document would, on balance, be contrary to the public interest under subsection 11A(5).
(2) This section does not limit subsection 11A(5).
Factors favouring access
(3) Factors favouring access to the document in the public interest include whether access to the
document would do any of the fol owing:
(a) promote the objects of this Act (including al the matters set out in sections 3 and 3A);
(b) inform debate on a matter of public importance;
(c)
promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal information.
Irrelevant factors
(4) The fol owing factors must not be taken into account in deciding whether access to the
document would, on balance, be contrary to the public interest:
(a) access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss of confidence in the Commonwealth Government;
(aa) access to the document could result in embarrassment to the Government of Norfolk
Island or cause a loss of confidence in the Government of Norfolk Island;
(b) access to the document could result in any person misinterpreting or misunderstanding
the document;
(c)
the author of the document was (or is) of high seniority in the agency to which the
request for access to the document was made;
(d) access to the document could result in confusion or unnecessary debate.
Guidelines
(5) In working out whether access to the document would, on balance, be contrary to the public
interest, an agency or Minister must have regard to any guidelines issued by the Information
Commissioner for the purposes of this subsection under section 93A.
A2
link to page 9
ATTACHMENT B
FOI fact sheet 12
Freedom of information – Your review rights
April 2011
If you disagree with the decision of an Australian Government agency or minister under the
Freedom of
Information Act 1982 (the FOI Act), you can ask for the decision to be reviewed. You may want to seek
review if you sought certain document and were not given ful access, if someone is to be granted access to
information that is about you, if the agency has informed you that it wil impose a charge for processing
your request or if your application to have your personal information amended was not accepted. There
are two ways you can ask for review of a decision: internal review by the agency, and external review by
the Australian Information Commissioner.
Internal review
or would not address your concerns (for example,
if you were not consulted about a document
If an agency makes an FOI decision that you
that contains your personal information before it
disagree with, you can ask the agency to review
was released). For more information see FOI fact
its decision. The review wil be carried out by a
sheet 13 –
Freedom of information: How to make
different agency officer, usually someone at a more
a complaint.
senior level. There is no charge for internal review.
Do I have to go through the agency’s internal
You must apply within 30 days of being notified
review process first?
of the decision, unless the agency extended the
No. You may apply directly to the Information
application time. You should contact the agency if
Commissioner. However, going through the
you wish to seek an extension. The agency must
agency’s internal review process gives the
make a review decision within 30 days. If it does
agency the opportunity to reconsider its initial
not do so, its original decision is considered to be
decision, and your needs may be met more
affirmed.
quickly without undergoing an external review
Internal review is not available if a minister or
process.
the chief officer of the agency made the decision
Do I have to pay?
personal y.
No. The Information Commissioner’s review is
Review by the Information Commissioner
free.
The Information Commissioner is an independent
How do I apply?
office holder who can review the decisions of
You must apply in writing and you can lodge your
agencies and ministers under the FOI Act.
application in one of the fol owing ways:
Is a review the same as a complaint?
online: www.oaic.gov.au
No. The Information Commissioner also investigates
post:
GPO Box 2999, Canberra ACT 2601
complaints about agency actions under the FOI Act.
However, if you are complaining that an agency
fax:
+61 2 9284 9666
decision is wrong, it wil be treated as an application
for a review. Your matter wil be treated as a
email:
xxxxxxxxx@xxxx.xxx.xx
complaint when a review would not be practical
in person: Level 3,
175 Pitt Street
Sydney NSW 2000
FOI Fact Sheet 12 – Freedom of information: Your review rights
B1
link to page 9
An application form is available on the website at
Can I withdraw my application?
www.oaic.gov.au. Your application should include
a copy of the notice of the decision that you are
Yes. An application can be withdrawn at any time
objecting to (if one was provided), and your
before the Information Commissioner makes a
contact details. You should also set out why you are
decision.
objecting to the decision.
What happens in the review process?
Can I get help in completing the application?
The review process is designed to be as informal
Yes. The Information Commissioner’s staff are
as possible. The Information Commissioner
available to help you with your application if
may contact you or any of the other parties to
anything is unclear.
clarify matters and seek more information. The
Information Commissioner may also ask the agency
When do I have to apply?
or minister to provide reasons for their decision if
If you are objecting to a decision to refuse access
the reasons given were inadequate.
to document, impose a charge or refuse to amend a
Most reviews wil be made on the basis of the
document, you must apply to the Information
submissions and papers provided by the parties.
Commissioner within 60 days of being given notice
Sometimes the Information Commissioner may
of the decision. If you are objecting to a decision
decide to hold a hearing if one of the parties
to grant access to another person, you must apply
applies. Parties may participate in a hearing by
within 30 days of being notified of that decision.
telephone. If confidential matters are raised, the
You can ask the Information Commissioner for an
hearing may be held partly or whol y in private.
extension of time to apply, and this may be granted
Wil there be other parties to the review?
if the Information Commissioner considers it is
reasonable in the circumstances.
There may be. The Information Commissioner
can join other parties who are affected by the
Who wil conduct the review?
application. For example, if you are objecting to
Staff of the Information Commissioner wil conduct
someone else being granted access to information
the review. Only the Information Commissioner, the
that concerns you, that person may be joined in
FOI Commissioner or the Privacy Commissioner can
the review.
make a decision at the end of the review.
Can someone else represent me?
Does the Information Commissioner have to
Yes, including a lawyer. However, the Information
review my matter?
Commissioner prefers the process to be as informal
No. The Information Commissioner may decide
and cost-effective as possible and does not
not to review an application that is frivolous,
encourage legal representation.
misconceived or lacking in substance, or if you fail
Wil the Information Commissioner look at al
to cooperate with the process or cannot be contacted
document, including ones that are claimed to be
after reasonable attempts. You cannot appeal
exempt?
against that decision.
Yes. The Information Commissioner’s review is a
Alternatively the Information Commissioner may
fresh decision, so all the relevant material must be
decide that the Administrative Appeals Tribunal
examined, including document that the agency or
(AAT) would be better placed to review the matter,
minister has declined to release. Developments that
and if so, will advise you of the procedure for
have occurred since the original decision may also
applying to the AAT. This wil not be common.
be considered.
FOI Fact Sheet 12 – Freedom of information: Your review rights
B2
link to page 9
What powers does the Information Commissioner
What can I do if I disagree with the Information
have?
Commissioner’s review decision?
While the review process is designed to be
You can appeal to the AAT. The Information
informal, the Information Commissioner has formal
Commissioner wil not be a party to those
powers to require anyone to produce information
proceedings. The fee for lodging an AAT application
or document, to compel anyone to attend to
is $777 (at November 2010), although there are
answer questions and to take an oath or
exemptions for health care and pension concession
affirmation that their answers wil be true.
card holders and the AAT can waive the fee on
financial hardship grounds.
An agency or minister can also be ordered to
undertake further searches for document.
FOI applications made before 1 November
What decisions can the Information Commissioner
2010
make?
The Information Commissioner can only review an
After reviewing a decision, the Information
agency’s or minister’s FOI decision if you made your
Commissioner must do one of three things:
FOI request on or after 1 November 2010. If you
set the decision aside and make a fresh decision
made your FOI request before 1 November, even if
affirm the decision, or
the decision was made after that date, the review
vary the decision.
process is different.
The Information Commissioner wil give reasons for
You must first ask the agency for internal review of
the decision.
the decision. You may then appeal to the AAT if you
are not satisfied with the decision.
Wil the decision be made public?
Yes. The Information Commissioner wil publish
The information provided in this fact sheet is of a
decisions on the website. Exempt material (that is,
general nature. It is not a substitute for legal advice.
material that is not released) wil not be included.
Nor wil the name of the review applicant, unless
that person requests otherwise or there is a special
For further information
reason to publish it.
telephone: 1300 363 992
email: xxxxxxxxx@xxxx.xxx.xx
write: GPO Box 2999, Canberra ACT 2601
or visit our website at
www.oaic.gov.au
FOI Fact Sheet 12 – Freedom of information: Your review rights
B3
link to page 12
ATTACHMENT C
FOI fact sheet 13
Freedom of information – How to make a complaint
October 2010
You may complain to the Australian Information Commissioner if you have concerns
about how an Australian Government agency handled a request for document under
the
Freedom of Information Act 1982 (the FOI Act) or took any other action under that
Act. If you are unhappy with the agency’s decision about giving or refusing access to
document, you should ask for the decision to be reviewed, which is a separate process.
Disagree with an FOI decision?
If the Information Commissioner decides to
If you disagree with an agency’s or minister’s
investigate your complaint, the agency you have
decision on your request under the FOI Act, you
complained about wil be notified in writing of
have the right to have the decision reviewed.
the complaint. The Information Commissioner
You can ask an agency to review its decision
conducts investigations of complaints in private.
internal y. You also have the right to ask the
Information Commissioner to review an agency’s
Who can make a complaint?
or minister’s decision. See
FOI Fact Sheet 12
Any person can make a complaint about the
Freedom of information – Your review rights
actions of an agency in relation to an FOI activity.
for more information about the review process.
You do not need to have requested document
If you are concerned about the way an agency
under the FOI Act.
has handled your matter, you can complain to the
Information Commissioner.
When should I make a complaint?
You can complain to the Information
What are the powers of the Information
Commissioner at any time. If your complaint
Commissioner?
relates to an FOI request you can make the
The Information Commissioner can investigate
complaint at any stage of the process.
a complaint about how an agency handled
Before making a complaint to the Information
an FOI request, or other actions the agency
Commissioner, you should contact the agency
took under the FOI Act. The Information
directly to try to resolve your concerns. The
Commissioner cannot investigate a complaint
Information Commissioner may decide not to
about a minister.
investigate your complaint if you have not raised
In conducting the investigation the Information
your concerns first with the agency or you have
Commissioner has the power to:
not given the agency a reasonable opportunity
to deal with your complaint.
• make inquiries of an agency
• obtain information from any person
• take possession of, or inspect, any relevant
document.
FOI Fact Sheet 13 – How to make a complaint
C1
link to page 12
How do I make a complaint?
Can the Information Commissioner decide not to
investigate my complaint?
Your complaint must be in writing and must
Yes. The Information Commissioner may decide
specify the agency you are complaining about.
not to investigate, or may discontinue an
You can send your complaint to us using
investigation, if:
the details at the end of this fact sheet. A
complaint form is also available on our website
• your complaint does not concern an agency’s
at www.oaic.gov.au.
action under the FOI Act
If you need help we can assist you. You can
• it is more appropriate for you to complain
contact us on 1300 363 992 or by email
to another body (such as the agency or the
to xxxxxxxxx@xxxx.xxx.xx.
Commonwealth Ombudsman)
What information do I need to put in the
• it is more appropriate for you to ask for the
complaint?
decision to be reviewed
To help the Information Commissioner give
• the agency you complained about has dealt
the best consideration to your complaint,
with your complaint, or is in the process of
please provide as much relevant information
dealing with it
as possible. Be clear about the issues in your
complaint and what action or outcome you
• your complaint is frivolous, lacking in
would like to see as a result.
substance or not made in good faith
Is there a fee for making a complaint?
• you do not have sufficient interest in the
matter.
No. There are no costs involved in making a
complaint to the Information Commissioner.
If the Information Commissioner decides not to
investigate or discontinues an investigation, the
What will happen to my complaint?
Commissioner wil notify you and the agency of
the reasons for this in writing.
An officer of the Information Commissioner wil
contact you to discuss your complaint and you
How will my complaint be resolved?
wil be kept informed of the progress of your
complaint along the way.
In some cases the Information Commissioner’s
investigation and intervention may result
Before deciding whether to investigate your
in the agency addressing the issues that
complaint the Information Commissioner may
you have complained about. In other cases
make preliminary inquiries of the agency you
the Information Commissioner may make
have complained about.
suggestions or recommendations that the
If the Information Commissioner decides to
agency should implement. You and the agency
investigate your complaint, the Commissioner
wil be notified in writing of the outcome of the
wil write to the agency and request information
investigation.
to assist with the investigation.
FOI Fact Sheet 13 – How to make a complaint
C2
link to page 12
If an agency fails to take adequate
The Information Commissioner can also transfer
and appropriate action to implement
to the Ombudsman a complaint that could more
any recommendations, the Information
appropriately be investigated by the
Commissioner may issue a formal Ombudsman. This could occur where the FOI
implementation notice. This notice requires
complaint is only one part of a wider grievance
the agency to explain what action it will take
about an agency’s actions. It is unlikely that this
to implement the recommendations. The
will be common. You will be notified in writing if
Information Commissioner may also provide a
your complaint is transferred.
written report to the minister responsible for
the agency, and the report wil be tabled in
Parliament.
The information provided in this fact sheet is of a
general nature. It is not a substitute for legal advice.
Your name wil not be included in the report
unless there is a special reason and you were
first consulted.
For further information
Investigation by the Ombudsman
telephone: 1300 363 992
The Commonwealth Ombudsman can also
email: xxxxxxxxx@xxxx.xxx.xx
investigate complaints about action taken by
write: GPO Box 2999, Canberra ACT 2601
agencies under the FOI Act. However, if the issue
or visit our website at
complained about either could be or has been
www.oaic.gov.au
investigated by the Information Commissioner,
the Ombudsman wil consult the Information
Commissioner to avoid the same matter being
investigated twice. If the Ombudsman decides
not to investigate, the complaint and al
relevant document must be transferred to the
Information Commissioner.
FOI Fact Sheet 13 – How to make a complaint
C3
Document Outline
- Page 1
- Page 2
- Page 3
- Page 4
- Page 5
- Page 6
- attachments.pdf
- 1 Section 45 of the FOI Act – Document containing material obtained in confidence
- 2 Section 47 of the FOI Act – Document disclosing commercially valuable information
- 3 Section 47E of the FOI Act – Operations of Agencies
- 4 Section 47F of the FOI Act – Personal Privacy
- 5 The public interest – section 11A of the FOI Act
- (a) access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;
- (b) access to the document could result in any person misinterpreting or misunderstanding the document;
- (c) the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;
- (d) access to the document could result in confusion or unnecessary debate.