Appendix 2
Schedule of relevant provisions used in making this decision
Excerpts from the
Freedom of Information Act 1982 (Cth)
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 legally 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 fol owing:
(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
conditionally 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 conditionally 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).
11B Public interest exemptions — factors
Scope
(1) This section applies for the purposes of working out whether access to a
conditionally 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 following:
(a) promote the objects of this Act (including all 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 following 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;
(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.
15
Requests for access (as related to the requirements for requests)
Persons may request access
(1) Subject to section 15A, a person who wishes to obtain access to a document
of an agency or an official document of a Minister may request access to the
document.
Requirements for request
(2) The request must:
(a) be in writing; and
(aa) state that the request is an application for the purposes of this Act;
and
(b) provide such information concerning the document as is reasonably
necessary to enable a responsible officer of the agency, or the
Minister, to identify it; and
(c) give details of how notices under this Act may be sent to the applicant
(for example, by providing an electronic address to which notices may
be sent by electronic communication).
(2A) The request must be sent to the agency or Minister. The request may be sent
in any of the following ways:
(a) delivery to an officer of the agency, or a member of the staff of the
Minister, at the address of any central or regional office of the agency
or Minister specified in a current telephone directory;
(b) postage by pre-paid post to an address mentioned in paragraph (a);
(c) sending by electronic communication to an electronic address
specified by the agency or Minister.
22 Access to edited copies with exempt or irrelevant matter deleted
Scope
(1)
This section applies if:
(a)
an agency or Minister decides:
(i)
to refuse to give access to an exempt document; or
(ii)
that to give access to a document would disclose information
that would reasonably be regarded as irrelevant to the request
for access; and
(b)
it is possible for the agency or Minister to prepare a copy (an edited
copy) of the document, modified by deletions, ensuring that:
(i)
access to the edited copy would be required to be given under
section 11A (access to documents on request); and
(ii)
the edited copy would not disclose any information that would
reasonably be regarded as irrelevant to the request; and
(c)
it is reasonably practicable for the agency or Minister to prepare the
edited copy, having regard to:
(i)
the nature and extent of the modification; and
(ii)
the resources available to modify the document; and
(d)
it is not apparent (from the request or from consultation with the
applicant) that the applicant would decline access to the edited copy.
Access to edited copy
(2)
The agency or Minister must:
(a)
prepare the edited copy as mentioned in paragraph (1)(b); and
(b)
give the applicant access to the edited copy.
Notice to applicant
(3)
The agency or Minister must give the applicant notice in writing:
(a)
that the edited copy has been prepared; and
(b)
of the grounds for the deletions; and
(c)
if any matter deleted is exempt matter—that the matter deleted is
exempt matter because of a specified provision of this Act.
(4)
Section 26 (reasons for decision) does not apply to the decision to refuse
access to the whole document unless the applicant requests the agency or
Minister to give the applicant a notice in writing in accordance with that
section.
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.
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 shall 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 conditionally
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 (ii); 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).
42
Documents subject to legal professional privilege
(1)
A document is an exempt document if it is of such a nature that it would be
privileged from production in legal proceedings on the ground of legal
professional privilege.
(2)
A document is not an exempt document because of subsection (1) if the
person entitled to claim legal professional privilege in relation to the
production of the document in legal proceedings waives that claim.
(3)
A document is not an exempt document under subsection (1) by reason only
that:
(a)
the document contains information that would (apart from this
subsection) cause the document to be exempt under subsection (1);
and
(b)
the information is operational information of an agency.
47C Public interest conditional exemptions—deliberative processes
General rule
(1)
A document is conditionally exempt if its disclosure under this Act would
disclose matter (deliberative matter) in the nature of, or relating to, opinion,
advice or recommendation obtained, prepared or recorded, or consultation or
deliberation that has taken place, in the course of, or for the purposes of, the
deliberative processes involved in the functions of:
(a)
an agency; or
(b)
a Minister; or
(c)
the Government of the Commonwealth; or
(d)
the Government of Norfolk Island.
Exceptions
(2)
Deliberative matter does not include either of the following:
(a)
operational information (see section 8A);
(b)
purely factual material.
Note: An agency must publish its operational information (see section 8).
(3)
This section does not apply to any of the following:
(a)
reports (including reports concerning the results of studies, surveys or
tests) of scientific or technical experts, whether employed within an
agency or not, including reports expressing the opinions of such
experts on scientific or technical matters;
(b)
reports of a body or organisation, prescribed by the regulations, that is
established within an agency;
(c)
the record of, or a formal statement of the reasons for, a final decision
given in the exercise of a power or of an adjudicative function.
Note: Access must general y be given to a conditional y exempt document unless it would be contrary to
the public interest (see section 11A).
47E Public interest conditional exemptions—certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or could
reasonably be expected to, do any of the following:
(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.
Note: Access must general y be given to a conditional y exempt document unless it would be contrary to
the public interest (see section 11A).
47F Public interest conditional exemptions—personal privacy
General rule
(1)
A document is conditionally 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 following matters:
(a)
the extent to which the information is well 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.
Access given to qualified person instead
(4)
Subsection (5) applies if:
(a)
a request is made to an agency or Minister for access to a document
of the agency, or an official document of the Minister, that contains
information concerning the applicant, being information that was
provided by a qualified person acting in his or her capacity as a
qualified person; and
(b)
it appears to the principal officer of the agency or to the Minister (as
the case may be) that the disclosure of the information to the applicant
might be detrimental to the applicant’s physical or mental health, or
wel -being.
(5)
The principal officer or Minister may, if access to the document would
otherwise be given to the applicant, direct that access to the document, so far
as it contains that information, is not to be given to the applicant but is to be
given instead to a qualified person who:
(a)
carries on the same occupation, of a kind mentioned in the definition
of qualified person in subsection (7), as the first-mentioned qualified
person; and
(b)
is to be nominated by the applicant.
(6)
The powers and functions of the principal officer of an agency under this
section may be exercised by an officer of the agency acting within his or her
scope of authority in accordance with arrangements referred to in section 23.
(7)
In this section:
qualified person means a person who carries on, and is entitled to carry on,
an occupation that involves the provision of care for the physical or mental
health of people or for their well-being, and, without limiting the generality of
the foregoing, includes any of the following:
(a)
a medical practitioner;
(b)
a psychiatrist;
(c)
a psychologist;
(d)
a counsellor;
(e)
a social worker.
Note: Access must general y be given to a conditional y exempt document unless it would be contrary to
the public interest (see section 11A).