Attachment C
Home / Freedom of information / Guidance and advice
Exemptions and conditional exemptions
under the Freedom of Information Act 1982
Date: 1 September 2011
The exemptions and conditional exemptions under the Freedom of Information Act 1982 (FOI Act)
ensure that sensitive information is properly protected. A person has a legally enforceable right of
access to a document of an agency or an official document of a minister unless the document is
exempt or conditionally exempt. You should refer to the FOI Guidelines Parts 5 (Exemptions) and
6 (Conditional exemptions) for full details.
Exemptions
s 33
Exempts documents if their disclosure would, or could reasonably be expected to,
cause damage to Australia's
national security, defence or international relations, or
would divulge information communicated in confidence to the Commonwealth by a
foreign government or an international organisation. This includes information
communicated pursuant to a treaty or formal instrument on protection of classified
information.
Attachment C
s 34
Exempts
Cabinet documents, which are Cabinet submissions, official records of the
Cabinet, briefings to a minister on a Cabinet submission, and drafts of Cabinet
submissions, official records and Cabinet briefings.
A Cabinet submission must have been created for the dominant purpose of being
submitted for Cabinet's consideration and must have actually been submitted or be
proposed by a sponsoring minister to be submitted (s 34(1)).
Includes a document that is a copy, part of or an extract from an exempt document (s
34(2)), and a document that contains information which would reveal a Cabinet
deliberation or decision (except where the deliberation or decision has been officially
disclosed) (s 34(3)).
A document is not exempt merely because it is an attachment to an exempt document
(s 34(4)).
A document by which a Cabinet decision is officially published (such as a media
release) is not an exempt document (s 34(5)).
Information in a Cabinet document is not exempt matter if the information consists of
purely factual information, unless disclosure would reveal a Cabinet deliberation or
decision whose existence has not been officially disclosed (s 34(6)).
s 37
Exempts documents if their disclosure would or could reasonably be expected to affect
the
enforcement of law and protection of public safety, including by:
•
prejudicing the conduct of an investigation of a breach relating to taxation or
proper administration of the law
• revealing the existence or identity of a confidential informant (see s 37(2A) for
confidential sources)
• endangering any person's life or physical safety
• prejudicing a fair trial
• disclosing lawful methods of investigation or prejudicing methods for
protecting public safety.
Attachment C
s 38
Exempts documents to which
secrecy provisions apply under a provision of another
Act and either:
•
that provision is specified in Schedule 3 of the FOI Act, or
• s 38 is expressly applied to the document or information in the document, by that
secrecy provision, or by another provision of that or any other enactment (s
38(1)(b)).
There are two limitations to this exemption. An applicant has a right of access to a
document that is exempt if the relevant secrecy provision does not prohibit disclosure
to that applicant. The exemption does not apply if the applicant requests a document
which contains their own personal information, except if disclosure is prohibited under
the Migration Act 1958.
s 42
Exempts documents subject to
legal professional privilege (LPP).
The dominant purpose test and the independent legal adviser and client relationship
are determinative when considering LPP. Documents are not exempt if the person
entitled to claim LPP waives the claim (s 42(3)(a)). Section 42 does not apply to an
agency's operational information (as defined in s 8A).
s 45
Exempts documents containing
material obtained in confidence, where the person
who provided the confidential information would be able to bring an action under the
general law for breach of confidence to prevent disclosure, or to seek compensation for
loss or damage arising from disclosure.
s 46
Exempts documents if their disclosure would, apart from the FOI Act and any immunity
of the Crown, be in
contempt of court or infringe the privileges of the Parliament.
A contempt of court is an action which interferes with the due administration of justice.
The term ‘parliamentary privilege' refers to the privileges or immunities of the Houses
of the Parliament and the powers of the Houses to protect the integrity of their
processes.
s 47
Exempts documents disclosing
trade secrets or
commercially valuable information
whose value would be, or could reasonably be expected to be, destroyed or diminished
if the information were disclosed.
See also the business or professional affairs conditional exemption (s 47G).
s 47A Exempts
electoral rolls, including:
•
print, microform and digital copies of electoral rolls
• documents that set out particulars of individual electors that were used to
prepare electoral rolls or were derived from electoral roll data.
Attachment C
Conditional exemptions
Application of the public interest test to conditional
exemptions
An agency or minister must give access to a conditionally exempt document unless at the time
disclosure would, on balance, be contrary to the public interest (s 11A(5)). The FOI Act sets out
certain factors that favour access and some that must not be taken into account (s 11B(3) and (4)).
s 47B Conditionally exempts documents if their disclosure would or could reasonably be
expected to damage
Commonwealth-State relations or relations with Norfolk Island
or disclose information communicated in confidence by or on behalf of a government
or authority of a State to the Commonwealth or the Government of Norfolk Island.
s 47C Conditionally exempts documents if their disclosure would disclose
deliberative
processes.
Deliberative matter includes opinions, advices or recommendations that have been
obtained, prepared or recorded, and consultations or deliberation that have taken
place, as part of the deliberative processes relating to the functions of an agency, a
minister or the Government of the Commonwealth or Norfolk Island. Operational
information (as defined in s 8A) and purely factual material are not deliberative matter.
Does not apply to:
•
reports of scientific or technical experts
• reports of a body or organisation established within an agency
• records of a final decision given in the exercise of a power or of an
adjudicative function (s 47C(3)).
s 47D Conditionally exempts documents if their disclosure would have a substantial adverse
effect on the
financial or property interests of the Commonwealth or Norfolk
Island.
Relates both to expenditure and revenue-generating activities, including intellectual
property and the Crown's interests in natural resources.
Attachment C
s 47E Conditionally exempts documents if their disclosure would reasonably be expected to
affect
certain operations of agencies on one or more of the following grounds:
•
prejudice to the effectiveness of procedures or methods for the conduct of
tests, examinations or audits
• prejudice to the attainment of the objects of particular tests, examinations or audits
• a substantial adverse effect on the management or assessment of personnel
• a substantial adverse effect on the proper and efficient conduct of
operations.
s 47F Conditionally exempts documents if their disclosure would involve the unreasonable
disclosure of
personal information about any person (including a deceased person).
An agency or minister must take into account:
•
the extent to which the information is well known
• whether the person to whom the information relates is known to be
associated with the matters dealt with in the document
• the availability of the information from publicly accessible sources
• any other relevant matters (s 47F(2)).
Access can be given to a qualified person nominated by the applicant if it would be
detrimental to the applicant's health or well-being to be given direct access to the
documents. The qualified persons include medical practitioners, psychiatrists,
psychologists, counsellors and social workers.
s 47G Conditionally exempts documents if their release would disclose information about a
person's
business or professional affairs, or the business, commercial or financial
affairs of an organisation or undertaking, and the disclosure:
•
would or could reasonably be expected to unreasonably affect those lawful
affairs, or
• could reasonably be expected to prejudice the supply of information to the
Commonwealth, Norfolk Island or an agency.
Consider also the trade secrets or commercially valuable information exemption (s 47).
s 47H Conditionally exempts documents containing information about
research being
undertaken by an agency officer if its disclosure would be likely unreasonably to
expose the agency or officer to disadvantage.
Only applies to CSIRO and Australian National University (ANU) (see Schedule 4).
Attachment C
s 47J Conditionally exempts documents if their disclosure would reasonably be
expected to have a substantial adverse effect on Australia's
economy (including
on a particular sector of the economy or the economy of a particular region), by:
•
influencing a decision or action, or
• giving a person or class of persons an undue benefit or detriment in relation to
their business by providing premature knowledge of an action or inaction.
Documents include those containing matter relating to currency or exchange
rates, interest rates, taxes, financial regulation and foreign investment.
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