Schedule of relevant provisions in the FOI Act
3
Objects—general
(1) The objects of this Act are to give the Australian community access to information held
by the Government of the Commonwealth or the Government of Norfolk Island, by:
(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.
(2) The Parliament intends, by these objects, to promote Australia’s representative
democracy by contributing towards the following:
(a) increasing public participation in Government processes, with a view to promoting
better-informed decision-making;
(b) increasing scrutiny, discussion, comment and review of the Government’s
activities.
(3) The Parliament also intends, by these objects, to increase recognition that information
held by the Government is to be managed for public purposes, and is a national
resource.
(4) The Parliament also intends that functions and powers given by this Act are to be
performed and exercised, as far as possible, to facilitate and promote public access to
information, promptly and at the lowest reasonable cost.
11 Right of access
(1) Subject to this Act, every person has a legal y enforceable right to obtain access in
accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
(2) Subject to this Act, a person’s right of access is not affected by:
(a) any reasons the person gives for seeking access; or
(b) the agency’s or Minister’s belief as to what are his or her reasons for seeking
access.
11A Access to documents on request
Scope
(1) This section applies if:
(a) a request is made by a person, in accordance with subsection 15(2), to an
agency or Minister for access to:
(i) a document of the agency; or
(ii) an official document of the Minister; and
(b) any charge that, under the regulations, is required to be paid before access is
given has been paid.
(2) This section applies subject to this Act.
Note:
Other provisions of this Act are relevant to decisions about access to documents, for
example the following:
(a) section 12 (documents otherwise available);
(b) section 13 (documents in national institutions);
(c) section 15A (personnel records);
(d) section 22 (access to edited copies with exempt or irrelevant matter deleted).
Mandatory access—general rule
(3) The agency or Minister must give the person access to the document in accordance
with this Act, subject to this section.
Exemptions and conditional exemptions
(4) The agency or Minister is not required by this Act to give the person access to the
document at a particular time if, at that time, the document is an exempt document.
Note:
Access may be given to an exempt document apart from under this Act, whether or not in
response to a request (see section 3A (objects—information or documents otherwise
accessible)).
(5) The agency or Minister must give the person access to the document if it is
conditional y exempt at a particular time unless (in the circumstances) access to the
document at that time would, on balance, be contrary to the public interest.
Note 1: Division 3 of Part IV provides for when a document is conditionally exempt.
Note 2: A conditional y exempt document is an exempt document if access to the document
would, on balance, be contrary to the public interest (see section 31B (exempt documents
for the purposes of Part IV)).
Note 3: Section 11B deals with when it is contrary to the public interest to give a person access to
the document.
(6) Despite subsection (5), the agency or Minister is not required to give access to the
document at a particular time if, at that time, the document is both:
(a) a conditionaly exempt document; and
(b) an exempt document:
(i) under Division 2 of Part IV (exemptions); or
(ii) within the meaning of paragraph (b) or (c) of the definition of exempt
document in subsection 4(1).
23 Decisions to be made by authorised persons
(1) Subject to subsection (2), a decision in respect of a request made to an agency may
be made, on behalf of the agency, by the responsible Minister or the principal officer of
the agency or, subject to the regulations, by an officer of the agency acting within the
scope of authority exercisable by him or her in accordance with arrangements
approved by the responsible Minister or the principal officer of the agency.
(2) A decision in respect of a request made to a court, or made to a tribunal, authority or
body that is specified in Appendix 1, may be made on behalf of that court, tribunal,
authority or body by the principal officer of that court, tribunal, authority or body or,
subject to the regulations, by an officer of that court, tribunal, authority or body acting
within the scope of authority exercisable by him or her in accordance with
arrangements approved by the principal officer of that court, tribunal, authority or
body.
(see section 11A).
24A Requests may be refused if documents cannot be found, do not exist or
have not been received
Document lost or non-existent
(1) A
n agency o
r Minister may refus
e a request for access t
o a document if:
(a) all reasonable steps have been taken to find t
he document; and
(b) t
he agency o
r Minister is satisfied that t
he document:
(i) is in t
he agency's or
Minister's possession but cannot be found; or
(ii) does not exist.
Document not received as required by contract
(2) A
n agency may refus
e a request for access t
o a document if:
(a) in order to comply wit
h section 6C, the
agency has taken contractual measures to
ensure that it receives the
document; and
(b) t
he agency has not received t
he document; and
(c) t
he agency has taken al reasonable steps to receive t
he document in
accordance with those contractual measures.
26 Reasons and other particulars of decisions to be given
(1) Where, in relation to a request, a decision is made relating to a refusal to grant access
to a document in accordance with the request or deferring provision of access to a
document, the decision-maker shal cause the applicant to be given notice in writing of
the decision, and the notice shall:
(a) state the findings on any material questions of fact, referring to the material on
which those findings were based, and state the reasons for the decision; and
(aa) in the case of a decision to refuse to give access to a conditional y exempt
document—include in those reasons the public interest factors taken into
account in making the decision; and
Note: Access must general y be given to a conditionally exempt document unless it would be contrary
to the public interest (see section 11A).
(b) where the decision relates to a document of an agency, state the name and
designation of the person giving the decision; and
(c) give to the applicant appropriate information concerning:
(i)
his or her rights with respect to review of the decision;
(ii)
his or her rights to make a complaint to the Information
Commissioner in relation to the decision; and
(iii)
the procedure for the exercise of the rights referred to in
subparagraphs (i) and (i ); including (where applicable) particulars
of the manner in which an application for internal review (Part VI)
and IC review (Part VI ) may be made.
(1A) Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply
to a decision referred to in subsection (1).
(2) A notice under this section is not required to contain any matter that is of such a
nature that its inclusion in a document of an agency would cause that document to be
an exempt document.
(see section 11A).
Document Outline
