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PART 1 — INTRODUCTION
Version 1.4, December 2016
Structure and purpose of the Information Commissioner’s FOI Guidelines ............... 2
Overview of the FOI Act ........................................................................................... 2
Objects of the FOI Act .............................................................................................. 3
Access to government documents ........................................................................... 3
Form of request ...................................................................................................................... 3
Charges .................................................................................................................................... 3
Exempt documents ................................................................................................................. 4
Timeframes ............................................................................................................................. 4
Practical refusal ....................................................................................................................... 4
Reasons for decisions .............................................................................................................. 5
Disclosure log .......................................................................................................................... 5
Amendment and annotation of personal information .............................................. 5
Review of decisions ................................................................................................. 5
Internal review ........................................................................................................................ 5
Information Commissioner review ......................................................................................... 6
Further review of decisions .................................................................................................... 6
Complaints and investigations ................................................................................................ 7
Information Publication Scheme .............................................................................. 7
Vexatious applicant declarations ............................................................................. 7
Publication and access powers not limited ............................................................... 8
Administrative access to documents ........................................................................ 8
Oversight of FOI Act ................................................................................................. 8
Further published resources ................................................................................................... 9
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PART 1 — INTRODUCTION
Structure and purpose of the Information Commissioner’s FOI Guidelines
1.1
The
Freedom of Information Act 1982 (the FOI Act) s 93A provides that the
Australian Information Commissioner may issue written guidelines for the purposes of
the FOI Act (Guidelines).
These Guidelines provide information and guidance on the
interpretation, operation and administration of the
Freedom of Information Act 1982 (the FOI Act). The Guidelines are divided into the following parts:
Part 1 – Introduction
Part 2 – Scope of application of the FOI Act
Part 3 – Processing and deciding on requests for access
Part 4 – Charges for providing access
Part 5 – Exemptions
Part 6 – Conditional exemptions
Part 7 – Amendment and annotation of personal records
Part 9 – Internal agency review of decisions
Part 10 – Review by the Information Commissioner
Part 11 – Complaints and investigations
Part 12 – Vexatious applicant declarations
Part 13 – Information publication scheme
Part 14 – Disclosure log
Part 15 – Reporting
1.2
The FOI Act specifies that agencies and ministers must have regard to these
guidelines in exercising powers and functions under the FOI Act, both generally (s 93A)
and specifically in relation to:
the Information Publication Scheme (s 9A(b)) (see Part 13 of these Guidelines)
in working out whether access to a conditionally exempt would, on balance be
contrary to the public interest (s 11B(5)) (see Part 6 of these Guidelines)
in making a decision on a request for access to a document of an agency or an official
document of a minister (s 15(5A)) (see Part 3 of these Guidelines).
Overview of the FOI Act
1.3
The FOI Act is the legislative basis for open government in Australia at the
Commonwealth level. The FOI Act applies to official documents of Australian
Government ministers, documents of most Commonwealth agencies and in some
circumstances, contractors of the Commonwealth (see Part 2 of these Guidelines).
1.4
The FOI Act is supplemented by the
Freedom of Information (Charges)
Regulations 1982 and
the
Freedom of Information (Miscellaneous Provisions)
Regulations 1982.
1.5
Each person has legally enforceable rights under and subject to the FOI Act to
obtain access to government documents and to apply for the amendment or annotation
of records of personal information held by government.
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1.6
The FOI Act also requires agencies to publish specified categories of information,
and encourages the proactive release of other government held information.
Objects of the FOI Act
1.7
In performing functions and exercising powers under the FOI Act, agencies and
ministers must also consider its objects, which are set down in s 3:
to give the Australian community access to information held by government, by
requiring agencies to publish that information and by providing for a right of access to
documents
to promote Australia’s representative democracy by increasing public participation in
government processes, with a view to promoting better-informed decision making
to promote Australia’s representative democracy by increasing scrutiny, discussion,
comment and review of government activities
to increase recognition that information held by government is to be managed for
public purposes and is a national resource
that powers and functions under the FOI 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.
1.8
In interpreting the provisions of the FOI Act, the interpretation that would best
achieve these objects is to be preferred (
Acts Interpretation Act 1901, s 15AA).
Access to government documents
Form of request
1.9
There are some formal requirements to make a valid FOI request for documents
of an agency or official documents of a minister. They include that a request must be in
writing (s 15(2)(a)) and must state that it is a request for the purposes of the FOI Act (s
15(2)(aa)).
1.10 A request must also provide such information as is reasonably necessary to
enable a responsible officer of the agency or the minister to identify the document that
is requested (s 15(2)(b)) and must give details of how notices under the FOI Act may be
sent to the applicant (see Part 3 of these Guidelines).
1.11 An agency has a duty to take reasonable steps to assist a person to make a
request so that it complies with the formal requirements of the FOI Act (s 15(3)) (see
Part 2 of these Guidelines).
Charges
1.12 Section 29 of the FOI Act provides a discretion for an agency or minister to
impose a charge for processing a request or providing access to a document. Imposition
of a charge must be assessed at the lowest reasonable cost under the
Freedom of
Information (Charges) Regulations 1982 (Charges Regulations) (see Part 4 of these
Guidelines). A charge cannot be imposed if an applicant is seeking access to a document
that contains their own personal information (Charges Regulations, reg 5(1)).
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Exempt documents
1.13 Where an FOI request has been made and any required charges have been paid,
an agency or minister must give access to a document unless at that time of its decision,
it is an ‘exempt document’. Exempt document means:
the agency, person or body is exempt from the operation of the FOI Act, entirely or in
respect of certain documents (see ss 5-7 and schs 1-2 of the FOI Act; and Part 2 of
these Guidelines),
in the case of official documents of a minister, a document contains matter not
relating to the affairs of an agency or department of state (see s 4(1) and Part 2 of
these Guidelines), or
an exemption under Part IV of the FOI Act applies to the document (see Part 5 and
Part 6 of these Guidelines).
1.14 Exemptions under Part IV of the FOI Act fall into two categories:
Division 2: those which are not subject to a separate public interest test (eg
documents affecting national security, Cabinet documents or documents affecting
law enforcement and public safety) (see Part 5 of these Guidelines), and
Division 3: those subject to a public interest test under s 11A(5) which is weighted in
favour of disclosure (eg documents affecting personal privacy, deliberative processes
or certain business information) (see Part 6 of these Guidelines)
Timeframes
1.15 An agency or minister has a statutory obligation to acknowledge that an FOI
request has been received as soon as practicable, and no later than 14 days after
receiving a request (s 15(5)(a)).
1.16 Once an FOI request for documents has been received, an agency or minister
must, as soon as practicable, and no later than 30 days after receiving a request, take all
reasonable steps to enable the applicant to be notified of a decision on the request
(s 15(5)(b)).
1.17 The FOI Act allows for the extension of that statutory timeframe in certain
circumstances, for example, where third-party consultation is required, with the
agreement of the applicant or with the approval of the Information Commissioner (see
Part 3 of these Guidelines).
Practical refusal
1.18 An agency or minister may refuse a request if a ‘practical refusal reason’ exists
(s 24) but only after following the ‘request consultation process’ set out in s 24AB of the
FOI Act (see Part 3 of these Guidelines).
1.19 A practical refusal reason means that:
a request does not sufficiently identify the requested documents (s 24AA(1)(b)); or
the work involved in processing the request:
in the case of an agency—would substantially and unreasonably divert the
resources of the agency from its other operations (s 24AA(1)(a)(i)), or
in the case of a Minister—would substantially and unreasonably interfere with
the performance of the Minister’s functions (s 24AA(1)(a)(ii)).
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Reasons for decisions
1.20 If access is refused in respect to any part of a request for access, the decision
maker must provide a statement of reasons under s 26 of the FOI Act (see Part 3 of
these Guidelines). That provision also applies in relation to a decision to refuse to
amend or annotate a record (s 51D(3)).
Disclosure log
1.21 Agencies and ministers must publish information that has been released in
response to each FOI access request on a website, subject to certain exceptions under
s 11C of the FOI Act. This publication is known as a ‘disclosure log’ (see Part 14 of these
Guidelines).
Amendment and annotation of personal information
1.22 Individuals have the right under Part V of the FOI Act to seek amendment or
annotation of their personal information in a document of an agency or an official
document of a minister (see Part 7 of these Guidelines).
1.23 Where an applicant already has lawful access to the document, which has been
used, is being used or is available for use by the agency or minister for an administrative
purpose and contains personal information about the applicant which is incomplete,
incorrect, out of date or misleading, an applicant may request that a record:
be corrected (amendment), or
be annotated to include a statement explaining their objection and the reasons for
their objection (annotation).
1.24 A decision on a request for amendment or annotation must be made and
notified as soon as practicable but not later than 30 days from the day after the request
for amendment or annotation was received (s 51D(1)).
Review of decisions
Internal review
1.25 A person who is not satisfied with a decision on a request for documents, or for
amendment or annotation, may request an internal review by the agency of an ‘access
refusal’ decision (in the case of the FOI applicant; s 54(2)) or an ‘access grant’ decision
(in the case of an affected third party; s 54A(2)) (see Part 9 of these Guidelines).
1.26 An access refusal decision is defined in s 53A as:
a) a decision refusing to give access to a document in accordance with a request
b) a decision giving access to a document but not giving, in accordance with the
request, access to all documents to which the request relates
c)
a decision purporting to give, in accordance with a request, access to all documents
to which the request relates, but not actually giving that access
d) a decision to defer the provision of access to a document (other than a document
covered by paragraph 21(1)(d) (Parliament should be informed of contents))
e) a decision under section 29 relating to imposition of a charge or the amount of a
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charge
f)
a decision to give access to a document to a qualified person under
subsection 47F(5)
g) a decision refusing to amend a record of personal information in accordance with an
application made under section 48, and
h) a decision refusing to annotate a record of personal information in accordance with
an application made under section 48.
1.27 An access grant decision is defined in s 53B as a decision to grant access to a
document where there is a requirement to consult with a state under s 26A, the
Commonwealth or a state under s 26AA, a business entity under s 27, or an individual or
legal personal representative of a deceased person under s 27A (see Part 3 of these
Guidelines).
1.28 Internal review is a merit review at a latter point in time and the new decision
maker is not bound by the earlier decision.
1.29 Internal review is not available if an access refusal decision or access grant
decision was made by a minister (ss 54(1) and 54A(1)) or made personally by the
principal officer of an agency (ss 54(1) and 54A(1)) (see Part 9 of these Guidelines).
Information Commissioner review
1.30 An FOI applicant can apply to the Information Commissioner for merit review
(IC review) of an access refusal decision by an agency or minister (s 54L), and an affected
third party can apply for review of an access grant decision (s 54M) (see Part 10 of these
Guidelines).
1.31 The application for IC review can be made following the initial decision by the
agency or minister, or after internal review by the agency. This includes where a
decision is not made within the statutory time frame and is a deemed access refusal
(ss 15AC(3) and 51DA(2)) or a deemed affirmation of the original decision after a
request is made for internal review (54D(2)).
1.32 The Information Commissioner can affirm the agency’s or minister’s decision,
vary that decision, or set aside the decision and substitute a new decision to be
implemented by the agency or minister (s 55K).
1.33 Decisions of the Information Commissioner made in accordance with s 55K of
the FOI Act are published on the Australasian Legal Information Institute website
(www.austlii.edu.au). A summary table with links to the decisions is published on the
website of the OAIC (www.oaic.gov.au).
Further review of decisions
1.34 A party to the IC review can apply to the Administrative Appeals Tribunal (AAT)
for review of the Information Commissioner’s decision under s 55K (s 57A(1)(a)) or
review of an agency or minister’s decision where the Information Commissioner has
decided not to undertake a review under s 54W(b) (s 57A(1)(b)). An application may also
be made to the AAT for review of a decision to make a vexatious applicant declaration
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(s 89N) (see [1.36]-[1.37]; and Part 10 of these Guidelines).
1.35 Additionally, the Federal Court of Australia may decide questions of law referred
by the Information Commissioner (s 55H) or determine matters on appeal on a question
of law from the Information Commissioner’s decision (s 56) (see Part 10 of these
Guidelines).
Complaints and investigations
1.36 The Information Commissioner can investigate an action taken by agencies under
the FOI Act, either in response to a complaint or on the Commissioner’s own motion (see
Part 11 of these Guidelines).
1.37 The IC review function and the complaint investigation function provide
different remedies. For example:
through the IC review process, the Information Commissioner can make the correct
and preferable decision (if more than one legally correct option is available) on a
request for access, amendment or annotation (s 55K) or finalise an IC review matter
by making a decision in accordance with the terms of an agreement reached by the
parties (s 55F) (see Part 10 of these Guidelines)
the outcome of a complaint investigation can be a notice of completion to the agency
and any complainant, containing results of the investigation and any
recommendations (ss 86 – 88).
1.38 Given the different outcomes and potential overlap between complaints and IC
reviews, the Information Commissioner may decide not to investigate a complaint that
could be dealt with more effectively through an IC review process.
1.39 Under the
Ombudsman Act 1976, the Commonwealth Ombudsman also retains
authority to investigate complaints against agency actions under the FOI Act.
Information Publication Scheme
1.40 Part II of the FOI Act establishes an Information Publication Scheme (IPS) for
Australian Government agencies subject to the FOI Act. This is a statutory framework
for pro-active publication of information (see Part 13 of these Guidelines).
1.41 The IPS requires agencies to publish a broad range of information on their
website and provides a means for agencies to proactively publish other information.
Agencies must also publish a plan that explains how they intend to implement and
administer the IPS (an agency plan).
Vexatious applicant declarations
1.42 The Information Commissioner has the power to declare a person to be a
vexatious applicant (s 89K). The Information Commissioner may exercise that power if
satisfied that a person has engaged in one or more FOI access actions that involve an
abuse of process or if a particular request is manifestly unreasonable. Before making
such a declaration, the Commissioner must invite the person involved to make a
submission (see Part 12 of these Guidelines).
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1.43 Decisions in which a declaration is made are published on the websites of the
OAIC (www.oaic.gov.au) and the Australasian Legal Information Institute
(www.austlii.edu.au).
Publication and access powers not limited
1.44 The FOI Act is not intended to restrict the circumstances in which government
information can be released. Section 3A(2) states that it is not the intention of the
Parliament in enacting the FOI Act to limit the power of government agencies to publish
information or provide access to documents, or to prevent or discourage agencies from
doing so.
1.45 An agency may disclose information without a request under the FOI Act,
including information which would be exempt under the FOI Act. An agency may also
disclose exempt information if a request is made under the FOI Act, except where
restrictions such as secrecy provisions prohibit disclosure.
Administrative access to documents
1.46 The Information Commissioner encourages agencies to establish administrative
access schemes to give access to certain types of information outside the formal FOI
process (see Part 3 of these Guidelines). Greater access to government information
informally or via specific administrative access schemes advances the object of the FOI
Act to ‘facilitate and promote public access to information, promptly and at the lowest
reasonable cost’.1
Oversight of FOI Act
1.47 The OAIC, established under the
Australian Information Commissioner Act 2010
(AIC Act), is an independent agency that monitors FOI and promotes the objects of the
FOI Act through a range of statutory functions. In addition to merit review of FOI
decisions, investigating complaints about FOI administration and the vexatious applicant
declaration powers, the Commissioner:
publishes these Guidelines, which are to be revised periodically
registers and makes decisions on requests for extensions of time under the FOI Act2
promotes awareness and understanding of the FOI Act
provides advice and assistance to the public and agencies, and
monitors agency compliance with the FOI Act.
1.48 The Information Commissioner must also prepare an annual report, for
presentation to the Attorney-General and tabling in Parliament, covering a range of FOI
and privacy matters (s 30 of the AIC Act). Agencies must provide the Commissioner with
FOI information needed to prepare the report (s 93 of the FOI Act) (see Part 15 of these
Guidelines).
1.49 The OAIC is headed by the Australian Information Commissioner, who may be
1 See
FOI agency resource 14: Administrative access, July 2014, at www.oaic.gov.au.
2 See Part 3 of these Guidelines and
FOI agency resource 13: Extension of time for processing requests,July 2014, at
www.oaic.gov.au
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supported by an FOI Commissioner and a Privacy Commissioner. In addition to its FOI
function, the OAIC has:
privacy functions under the
Privacy Act 1988 (Privacy Act)
the information commissioner functions, which are to report to the minister on policy
and practice with respect to government information management and any other
functions conferred on the Information Commissioner.
1.50 The privacy, FOI and information commissioner functions are vested in the
Information Commissioner by the AIC Act. The privacy and FOI functions can be
exercised by any of the commissioners. Only the Information Commissioner can exercise
the information commissioner functions.
Further published resources
1.51 In addition to these Guidelines, the website of the OAIC (www.oaic.gov.au)
provides various practical resources for the public and government agencies on the
operation and administration of the FOI Act. These include:
Written guidance such as the FOI Guide, FOI fact sheets and answers to frequently
asked questions
Resources for FOI decision makers (FOI agency resources) including step by step
guidance, tips, checklists, and templates for notices and statements of reasons
A database of published Information Commissioner review (IC review) decisions.
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Contents
Agencies subject to the FOI Act
3
Prescribed authority
3
Courts, tribunals and the Official Secretary to the Governor-General
4
Exemption of certain persons and bodies
5
Exemptions applying to commercial activities, security and defence intelligence documents
and other matters
6
Mandatory
transfer
of FOI
requests
9
Responding to FOI requests if an exemption applies
9
Ministers
10
Documents available in response to an FOI request
11
Meaning of ‘document’
11
Documents in existence
12
Documents of an agency
12
Official documents of a minister
15
Change of Minister
16
Documents in certain institutions
17
Records of commissions of inquiry
18
Documents open to public access and not available under the FOI access request
process
18
Personnel records
19
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PART 2 — SCOPE OF APPLICATION OF THE FREEDOM
OF INFORMATION ACT 2.1 Section 11(1) of the FOI Act gives every person a legal y enforceable right to obtain
access to a document of an agency or an official document of a minister, unless the
document is exempt.
2.2 An agency or a minister is not required to give a person access to a document at a
particular time if at that time the document is an ‘exempt document’ (s 11A(4)). An
‘exempt document’ is:
• a document that is exempt, or conditional y exempt where disclosure would be contrary
to the public interest, under Part IV of the Act (see Parts 5 and 6 of these Guidelines)
• a document in respect of which an agency, person or body is exempt from the operation
of the FOI Act under s 7 (see [2.13] – [2.26] below)
• an official document of a minister that contains some matter that does not relate to the
affairs of an agency or of a department of state (s 4(1)).
Agencies subject to the FOI Act
2.3 As a general rule, an Australian Government agency will be subject to the FOI Act unless
expressly provided otherwise. ‘Agency’ is defined at s 4(1) as:
• a department of the Australian Public Service
• a prescribed authority or
• a Norfolk Island authority.
Prescribed authority
2.4 A prescribed authority is defined in s 4(1) of the FOI Act to mean:
• a body corporate, or an unincorporated body, established for a public purpose by, or in
accordance with the provisions of, an enactment or an Order-in-Council
• any other body, incorporated or unincorporated, that has been declared by the FOI
Regulations to be a prescribed authority for the purposes of the FOI Act1
• a person holding an office or appointment under an enactment or Order in Council or
that is prescribed in the regulations
• NBN Co.
2.5 Some bodies, offices and appointments are expressly excluded from the definition of
prescribed authority and therefore are not covered by the FOI Act (ss 4(1) and 4(3)).
These include:
• an incorporated company or association
• Territory Legislatures, and the officers and members of the Territory legislature
1 Aboriginal Hostels Ltd has been prescribed under the
Freedom of Information (Prescribed Authorities, Principal Offices and
Annual Report) Regulations 2017.
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• Royal Commissions or a Commission of inquiry as defined in s 4(1).2
2.6 Unincorporated bodies such as boards, councils and committees that have been
established to assist or perform functions connected with a prescribed authority are
deemed to be within that prescribed authority (s 4(2)). Similarly, an office that has been
established by an enactment to perform duties as an employee of a department, a
member of a body or for the purposes of a prescribed authority, is not separately treated
as a prescribed authority (s 4(3)).
2.7 Section 68A of the
Parliamentary Service Act 1999 exempts departments and people
holding or performing the duties of an office established under that Act from the
definition of a prescribed authority under the FOI Act. The Parliamentary Librarian, the
Department of the Senate, and the Department of the House of Representatives are
established under the
Parliamentary Service Act 1999 and therefore those entities and
their staff are excluded from the operation of the FOI Act. In addition, the Parliamentary
Budget Office and the Parliamentary Budget Officer are deemed not to be prescribed
authorities under s 7(1) and Division 1 of Part I of Schedule 2 of the FOI Act.
Courts, tribunals and the Official Secretary to the Governor-General
2.8 The FOI Act has a restricted application to courts, court registries and the Official
Secretary to the Governor-General.3 Specifical y, the FOI Act does not apply to a request
for access to a document of a court or registry, or the Official Secretary to the Governor
General ‘unless the document relates to matters of an administrative nature’ (ss 5 and
6A). The FOI Act does not apply to the holder of a judicial office (s 5(1)(b)), or to the
Governor-General. A further exclusion exists for documents relating to the handling of
complaints about judicial officers (ss 5(1A)–(1C)).
2.9 Courts of Norfolk Island are taken to be Norfolk Island authorities for the purposes of the
FOI Act and, as with other courts, the FOI Act does not apply unless the document
requested relates to matters of an administrative nature (s 5(2)).
2.10 The phrase ‘matters of an administrative nature’ is not defined in the FOI Act.
In Kline v
Official Secretary to the Governor General, the High Court held that the phrase refers to
documents that concern ‘the management and administration of office resources, such
as financial and human resources and information technology’.4 By contrast, the phrase
does not apply to documents that relate to the discharge of a court’s or the Governor-
General’s ‘substantive powers and functions’.5 The High Court approved a similar
2 Records of commissions of inquiry are deemed to be in the possession of other agencies and to be available for access
under the FOI Act, see [2.72].
3 Section 6 (supplemented by Schedule 1) deems the Australian Industrial Relations Commission, the Australian Fair
Pay Commission and the Industrial Registrar and Deputy Industrial Registrars to be prescribed authorities to which
the FOI Act applies in respect of requests for documents relating to matters of an administrative nature. However,
both Commissions and the Registrars ceased operations in 2009. Some of the functions have been assumed by the
Fair Work Commission (previously Fair Work Australia), which is subject to the FOI Act.
4 [2013] HCA 52 [13] and [41] (joint judgment of French CJ, Crennan, Kiefel & Bell JJ). Gageler J, in a separate
judgment at [74], drew a similar distinction between the exercise or performance of substantive powers and
functions, and ‘providing logistical support (or infrastructure or physical necessities or resources or platform) for
the exercise or performance of those substantive powers or functions to be able to occur’.
5 [2013] HCA 52 [41].
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distinction drawn by the Ful Federal Court in the decision on appeal6 between the
substantive functions or powers of a court or the Governor-General, and the office
‘apparatus’ supporting the exercise or performance of those substantive powers and
functions.
2.11 Applying that distinction, the High Court held in
Kline that the FOI Act did not apply to an
FOI request to the Official Secretary to the Governor General for access to documents
relating to the administration of the Order of Australia, including decisions on the award
of Australian honours. As to courts, the High Court observed that the FOI Act applies only
to documents relating to the management and administration of registry and office
resources, and not to documents relating to the discharge of the substantive powers and
functions of adjudication or tasks referable to the exercise of judicial, rather than
administrative, powers and functions.7
2.12 There is no similar exclusion from the FOI Act applying to tribunals, such as the
Administrative Appeals Tribunal (AAT) and the Veterans’ Review Board. Tribunals fall
within the definition of ‘prescribed authority’ in s 4 of the FOI Act and the FOI Act applies
to them in the same way as it applies to other agencies. In particular, an FOI request may
be made for access to a document in the possession of the tribunal that was created by a
tribunal member for the purpose of an adjudication (though the exemption provisions
may apply to any such FOI request in the usual way).8
Exemption of certain persons and bodies
2.13 Some persons and bodies are excluded from the operation of the FOI Act. As a result,
access to documents held by these people or bodies cannot be requested under s 15(1)
of the FOI Act.
2.14 Under s 7(1), the fol owing bodies specified in Schedule 2, Part I, Division 1 are not
prescribed authorities for the purposes of the FOI Act and are therefore not subject to
the FOI Act:
• Aboriginal Land Councils and Land Trusts
• Auditor-General
• Australian Secret Intelligence Service
• Australian Security Intelligence Organisation (ASIO)
• Australian Signals Directorate
• Inspector-General of Intelligence and Security
• National Workplace Relations Consultative Council
• Office of National Intelligence (ONI)
• Parliamentary Budget Office
6
Kline v Official Secretary to the Governor-General [2012] FCAFC 184 [21], on appeal from
Kline and Official Secretary to
the Governor-General [2012] AATA 247, which was an appeal from
‘B’ and Office of the Official Secretary to the
Governor-General [2011] AICmr 6.
7 [2013] HCA 52 [45] and [47].
8 See
McLeod and Social Security Appeals Tribunal [2014] AICmr 34.
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• Parliamentary Budget Officer.
2.15 Under s 7(1A), the fol owing parts of the Department of Defence specified in Schedule 2,
Part I, Division 2 are taken not to be part of the Department of Defence or agencies in
their own right for the purposes of the FOI Act:
• Australian Geospatial-Intel igence Organisation
• Defence Intelligence Organisation.
2.16 Section 7(2AAA) of the FOI Act provides that the Parliamentary Workplace Support
Service, the Parliamentary Workplace Support Service Advisory Board and the
Parliamentary Workplace Support Service Consultative Committee are not prescribed
authorities for the purposes of the FOI Act. As a result, these entities are not subject to
the FOI Act.
2.17 Further, s 7(2DC) of the FOI Act provides that ministers and agencies are exempt from
the operation of the FOI Act in relation to documents given to, or received by the
Parliamentary Workplace Support Service, the Parliamentary Workplace Support
Service Advisory Board and the Parliamentary Workplace Support Service Consultative
Committee or documents brought into existence by those bodies, regardless of when
the documents came into existence.
Exemptions applying to commercial activities, security and defence
intelligence documents and other matters
2.18 Section 7(2) (supplemented by Schedule 2, Part II) lists agencies that are exempt from
the operation of the FOI Act in relation to particular documents. The list includes:
• the Australian Broadcasting Corporation (ABC) and Special Broadcasting Service (SBS)
in relation to program material and datacasting content (discussed below)
• the Reserve Bank of Australia in relation to its banking operations and exchange control
matters
• the Australian Statistician, in relation to documents containing information col ected
under the Census and Statistics Act 1905
• the Attorney-General’s Department in relation to its commercial activities and activities
undertaken by the Australian Government Solicitor
• various bodies such as Australia Post, Comcare, Commonwealth Scientific and
Industrial Research Organisation (CSIRO), NBN Co and Medicare, in relation to
documents in respect of commercial activities (discussed below).
2.19 For a complete list of bodies exempt under s 7(2), see Schedule 2, Part II.
2.20 The exemption for ‘program material’ of the ABC and SBS has been considered in
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Federal Court,9 AAT10 and IC review decisions.11 In
Australian Broadcasting Corporation
and Herald and Weekly Times Pty Limited, the AAT decided that program material means
a document ‘which is the program and al versions of the whole or any part of the
program, any transmission broadcast or publication of the program, and includes a
document of any content or form embodied in the program and any document acquired
or created for the purpose of creating the program, whether or not incorporated into the
complete program’.12 Documents containing salary information about ABC presenters,
and documents relating to the classification of television programs, were neither
‘program material’ nor documents ‘in relation to’ program material. That latter phrase
requires ‘at least a reasonably direct relationship’ or connection between a document
and the nominated topic, and not a connection that is indirect, remote or tenuous.13
2.21 The term ‘commercial activities’ is defined in s 7(3) as meaning the current or proposed
commercial activities of an agency that are carried on in competition with persons other
than governments or authorities of governments. A separate definition of ‘commercial
activities’ applies to NBN Co, namely, current or proposed commercial activities of
NBN Co (s 7(3A)).14 The fol owing points can be made about the scope of the exemption
for ‘commercial activities’:15
• activities are conducted on a commercial basis if they are related to, engaged in, or
used for commerce
• the commercial goal (profit making or the generation of income or return) is among the
circumstances to be taken into account in determining whether a particular activity is a
commercial activity
• commercial activity can be regarded as a business venture with a profit-making
objective and involves activity to generate trade and sales with a view to profit
• the exemption in s 7(2) does not require that a document be created for the dominant
purpose of carrying on a commercial activity and
• documents that relate to the appointment of a corporate advisor and agreements
between 2 commercial entities16 have been found to fal within the exemption for
commercial activities.
9 See
Australian Broadcasting Corporation v University of Technology, Sydney [2006] FCA 964 and
Bel v Commonwealth
Scientific and Industrial Research Organisation [2008] FCAFC 40.
10
Australian Broadcasting Corporation and Herald and Weekly Times Pty Limited [2012] AATA 914.
11
Herald and Weekly Times Pty Ltd and Australian Broadcasting Corporation [2012] AICmr 7;
‘F’ and Australian
Broadcasting Corporation [2012] AICmr 8;
‘ER’ and Special Broadcasting Service [2015] AICmr 12 and
Fist and
Australian Broadcasting Corporation [2014] AICmr 14.
12 [2012] AATA 914 [57].
13 Australian Broadcasting Corporation and Herald and Weekly Times Pty Limited [2012] AATA 914 [99]
. See also,
Jonathan
Sequeira and Australian Broadcasting Corporation (Freedom of information) [2023] AICmr 23 [29] in which a distinction
was made between program material acquired for the purpose of creating a program and one in which the work was
created and owned by a third party and not broadcast by the ABC.
14 See
Battersby and NBN Co Ltd [2013] AICmr 61.
15
Battersby and NBN Co Ltd [2013] AICmr 61. See also
Bell v Commonwealth Scientific and Industrial Research
Organisation [2008] FCAFC 40;
Johnston and Australian Postal Corporation [2006] AATA 144 and
Internode Pty Ltd and
NBN Co Ltd [2012] AICmr 4.
16 Respectively,
Battersby and NBN Co Ltd [2013] AICmr 61 and
Internode Pty Ltd and NBN Co Ltd [2012] AICmr 4.
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2.22 All Australian Government agencies are exempt from the operation of the FOI Act in
relation to ‘intelligence agency documents’ (for example, a document that originated
with or was received from ASIO or ONI) (s 7(2A)) and ‘defence intelligence documents’
(for example, a document that originated with or was received from the Department of
Defence and relates to the col ection, reporting or analysis of operational intelligence
(s 7(2C)). These exemptions also apply to documents in the possession of ministers
(s 7(2B)). The exemption extends to a part of a document that contains an extract from,
or a summary of, an intelligence agency document or a defence intelligence document.
The remainder of the document may not be exempt on the same basis and access may
have to be given after deletion of exempt matter under s 22.
2.23 Section 7(2DA) exempts ministers and agencies from the operation of the FOI Act in
relation to documents given to, or received by, the Independent Review into the
workplaces of Parliamentarians and their staff (the Review), or in relation to a person
performing functions in relation to the Review for the purposes of the Review, or a
document brought into existence by the Review or a person performing functions in
relation to the Review. However, ministers and agencies, other than the Australian
Human Rights Commission, are not exempt in relation to documents created for
purposes other than the Review to which a right of access otherwise exists or existed
under the FOI Act.
2.24 Al Australian Government agencies and ministers are exempt from the operation of the
FOI Act in relation to documents that contain a summary of, or an extract or information
from, a private session of a Royal Commission to which Part 4 of the
Royal Commissions
Act 1902 applies,17 as well as documents that originated with, or have been received
from, a Royal Commission18 and the documents:
• contain information obtained at a private session of the Commission or
• relate to a private session and identifies a natural person who appeared at a private
session or
• contain information given by a natural person to a member, or member of the staff,
of the Commission for the purposes of a private session (whether or not the private
session was, or is to be, held) and identifies the person who gave the information or
• contain information to which s 6ON of the
Royal Commission Act 1902 (which deals
with certain information given to the Child Sexual Abuse Royal Commission) applies
or
• contain information to which s 6OP of the
Royal Commission Act 1902 (which deals
with certain information given to the Disability Royal Commission) applies or
• contain information to which s 6OQ of the
Royal Commissions Act 1902 (which deals
with certain information given to the Defence and Veteran Suicide Royal
Commission) applies.
2.25 ‘Data scheme entities’, as defined in the
Data Availability and Transparency Act 2022,19
17 Part 4 of the
Royal Commissions Act 1902 relates to private sessions for certain Royal Commissions which include the Child
Sexual Abuse Royal Commission, the Defence and Veteran Suicide Royal Commission and the Disability Royal Commission.
18 As defined in Part 4 of the
Royal Commissions Act 1902. 19 ‘Data scheme entities’ are defined in s 11(1) of the
Data Availability and Transparency Act 2022 to be either data
custodians of public sector data or accredited entities. Section 11(1) provides that an entity is a
data custodian if it is
a Commonwealth body and is not an excluded entity, and it either controls public sector data (whether alone or
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are excluded from the operation of the FOI Act in relation to a document that
contains scheme data within the meaning of that Act, to the extent the document
contains such data.
2.26 Also excluded from the operation of the FOI Act are documents held by Australian
Government agencies and ministers that originated with, or have been received from,
the Australian Transaction Reports and Analysis Centre (AUSTRAC) (an AUSTRAC
intelligence document) that concerns information communicated to AUSTRAC:20
• under s 16 of the
Financial Transaction Reports Act 1988
• under s 41 of the
Anti-Money Laundering and Counter-Terrorism Financing Act 2006
• in response to a notice given under s 49 of the
Anti-Money Laundering and
Counter-Terrorism Financing Act 2006
• that contains a summary of, or an extract or information from, an AUSTRAC intel igence
document, to the extent that it contains such a summary, extract or information.
Mandatory
transfer
of FOI
requests
2.27 Some FOI requests must be transferred to another agency (ss 16(2) and 16(3)). This
requirement applies to FOI requests for documents originating with, or received from,
agencies that are exempt or partly exempt from the FOI Act (in particular, those outlined
at [2.14] – [2.15] above). The requirements for transfer of FOI requests are described in
more detail in Part 3 of these Guidelines which also identifies the categories of
document for which a mandatory transfer is required.
2.28 Certain requirements also apply for transfer of applications for amendment and
annotation of personal information and are described in Part 7 of these Guidelines.
Responding to FOI requests if an exemption applies
2.29 Where an agency is exempt in whole from the FOI Act under s 7, it is not obliged to
respond to FOI requests for documents or applications for amendment or annotation of
personal records. It is nevertheless good administrative practice for an exempt agency
to reply to an FOI applicant stating that the agency is not subject to the FOI Act. Equal y,
it may be open to the agency, independently of the FOI Act, to grant access to a
document on an administrative basis if there is no secrecy provision that prohibits this.
2.30 A different response may be required if an agency that is exempt only in relation to
particular types of documents receives an FOI request relating to those documents. The
FOI applicant may dispute the agency’s view that the documents are of an exempt
nature — for example, that the documents relate to the agency’s commercial activities,
or do not relate to matters of an administrative nature in a court. It is open to the FOI
applicant to seek Information Commissioner review of the agency’s decision. To
facilitate that process, the agency should observe the procedures in the FOI Act when
responding to the FOI applicant. For example, the agency should respond to the FOI
applicant in writing within the timeframe that applies under the FOI Act and advise the
jointly with another entity), including by having the right to deal with that data, or has become the data custodian of
output of a project in accordance with s 20F.
20 Part II, FOI Act 1982 (Cth).
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FOI applicant they can seek IC review of the decision that the documents they seek are not
subject to the FOI Act.
2.31 The procedures outlined in the previous paragraph should also be fol owed in other
circumstances where an agency or minister that is subject to the FOI Act receives a
request for documents to which the FOI Act may not apply. For example, this procedure
should be fol owed if a minister receives an FOI request for documents that are, in the
minister’s view, not ‘official documents of a minister’ (discussed below at [2.56] – [2.62]),
or if the National Library of Australia or similar agency receives a request for documents
that are regarded as being part of a library, historical or museum col ection.
Ministers
2.32 The right of access to documents extends to the ‘official documents of a minister’
(ss 11(1)(b) and 11A).21 The definition of an ‘official document of a minister’ is discussed
at [2.56] – [2.62] below. A minister includes an assistant minister.22
2.33 A minister is independent of the portfolio department for the purposes of the FOI Act and
is therefore responsible for processing any FOI requests they receive. It is nevertheless
open to a minister’s office to arrange for a portfolio department to provide assistance in
processing FOI requests on matters such as:
• Searching shared
resources: on receiving an FOI request, a minister’s office is
responsible for searching for the documents it holds, but can arrange for the portfolio
department to undertake a search of shared resources, such as a ministerial
correspondence register.
• Transfer of requests: a minister may transfer a request to the portfolio department, with
the department’s agreement, when s 16 applies (document held by the department but
not the minister (s 16(1)(a)), or when the subject matter of the document is more closely
connected with the department’s functions (s 16(1)(b))). It may assist the efficient
processing of FOI requests, including compliance with the 30-day time frame in the
FOI Act, for transfer arrangements to be documented in a written arrangement between
the minister and the department and for details of the arrangement be published on the
minister’s website. Similarly, the department should advise FOI applicants of the role
they may perform under arrangements with the minister’s office. A minister’s office
must be satisfied that it does not hold the requested documents, or if it does, that the
documents are more closely connected with another agency’s or minister’s functions
before deciding to transfer the request.23
• Reporting: a minister is required by s 93 of the FOI Act to provide information to the
Information Commissioner for the purposes of the Information Commissioner’s
reporting functions. A minister’s office may obtain assistance from a portfolio
department in meeting this requirement.
2.34 When an agency assists a minister to process an FOI request, they are undertaking
21 In
Dreyfus and Attorney-General (Commonwealth of Australia) (Freedom of information) [2015] AATA 995 at [63] per
Jagot J, the AAT accepted that the definition of exempt document includes official documents of a minister that
contain some matter that does not relate to the affairs of an agency or a department of state.
22 Assistant ministers, like ministers, are appointed under s 64 of the Constitution and have the same responsibilities
and obligations under the FOI Act.
23
Bienstein v Attorney-General [2007] FCA 1174.
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FOI Act functions. Therefore complaints about the way an FOI request was handled, in
these discrete circumstances, are subject to the Information Commissioner’s complaint
handling jurisdiction in Part VIIB of the FOI Act.24 For example, if the department
maintains a mailbox to which the minister’s FOI requests are sent and forwards
those requests to the minister.
2.35 Further information about the kinds of documents that can be requested from a minister
and the impact of a new minister on outstanding FOI requests and reviews can be found
at [2.56] – [2.67] below.
Decision making in the minister’s office
2.36 There is no express power in the FOI Act for a minister to authorise another person to
make a decision on an FOI request received by the minister.25 It is nevertheless open to a
minister to authorise senior members of the minister’s staff to make FOI decisions.26 This
should be undertaken in accordance with a written instrument or under an arrangement
in writing approved by the minister. In these circumstances, the authorised person makes
a decision on behalf of the minister in the capacity of an agent, rather than in their own
right as an authorised person.
Documents available in response to an FOI
request
2.37 The right of access applies to:
• a document of an agency that is subject to the FOI Act
• an official document of a minister
unless the document is an exempt document (s 11(1)).
Meaning of ‘document’
2.38 A ‘document’ is defined in s 4(1) to include any or any part of the fol owing:
• any paper or other material on which there is writing
• a map, plan, drawing or photograph
• any paper or other material on which there are marks, figures, symbols or perforations
having a meaning for persons qualified to interpret them
• any article or material from which sounds, images or writing are capable of being
reproduced with or without the aid of any other article or device
• any article on which information has been stored or recorded, either mechanical y or
electronically
• any other record of information
24 The Information Commissioner has power to investigate the actions taken by an agency in the performance of functions or
the exercise of powers under the FOI Act, but does not have the same power with respect to ministers.
25 Whereas s 23 provides that an FOI request to an agency, court or tribunal may be decided by an authorised person.
26 See
Carltona Ltd v Commissioners of Works [1943] 2 All ER 560.
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• any copy, including any part of any copy, of a reproduction or duplicate of a thing listed
above.
2.39 The definition of ‘document’ is broadly stated and is not exhaustive. It includes sound
recordings, films, video footage, microfilm, and information stored on computer tapes,
disks, DVDs and portable hard drives and devices. It can also include information held on
or transmitted between computer servers, backup tapes, mobile phones and mobile
computing devices (see Part 3 of these Guidelines). The term also covers forms of
recorded information that are 3-dimensional, such as a land use planning model.
2.40 Because the definition of document includes ‘any part of’ a document, an agency can deal
with an FOI request for a specific portion of a larger document, such as an appendix to a
paper or a chapter of a report, without having to examine the entire document for
exempt matter.27
2.41 Material maintained for reference purposes that is otherwise publicly available (such as
library reference material) and Cabinet notebooks are not ‘documents’ (s 4(1)).28 The
Information Commissioner has found that the exclusion for material held for reference
purposes by agencies and ministers’ is not intended to exclude from the operation of the
FOI Act material published on departmental websites, and apart from the limited
circumstances provided for in s 12(1), there is no provision in the FOI Act to refuse access
to a document solely on the ground that it is publicly available.29
Documents in existence
2.42 The right of access under the FOI Act is to existing documents, rather than to
information, for example, answers to a series of questions on a topic. The FOI Act
does not require an agency or minister to create a new document in response to an
FOI request except in the limited circumstances set out in ss 17 and 20. These
circumstances arise when the FOI applicant seeks access in a different form (s 20) or
where it appears that the FOI applicant seeks information that is not available in a
discrete form in written documents but is stored in an agency computer system rather
than in a discrete form (see Part 3 of these Guidelines). An FOI request may nevertheless
be framed by reference to a document that contains particular information.
2.43 The right of access applies to documents that exist at the time the FOI request was
made. An FOI applicant cannot insist that their FOI request cover documents created
after the FOI request is received. However, the agency or minister can consider whether
to include documents that were created after the FOI request was received. This may be
more administratively efficient because the FOI applicant might otherwise submit a new
FOI request for the later documents.
Documents of an agency
2.44 A ‘document of an agency’ is defined in s 4(1) as:
27 In
Timmins and Attorney-General’s Department [2015] AICmr 32 the Information Commissioner found that an attachment to a
brief within the scope of the applicant’s FOI request was also within the scope of the request because the brief could not be
properly understood without being aware of the attachment’s contents. Another attachment was not considered to be in
scope because it was only attached to the brief to il ustrate work that had been undertaken (at [14]-[22]).
28 See
Diamond and Australian Curriculum, Assessment and Reporting Authority [2013] AICmr 57.
29
Mil s and Department of Immigration and Border Protection [2014] AICmr 54 [20].
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• a document in the agency’s possession, whether created or received in the agency or
• a document in relation to which an agency has taken contractual measures under s 6C
to ensure that it receives the document from a contractor or sub-contractor providing
services to the public on the agency’s behalf (see [2.48] – [2.55] below).
2.45 ‘Possession’ of a document is not limited to actual or physical possession, but can
include constructive possession where an agency has the right and power to deal with a
document,30 regardless of where and by whom it is stored.31 Any record of information
which an agency has downloaded from a shared database or any other database and
stored on hard disks or file servers in its physical possession should be treated as a
‘document’ of that agency.
2.46 The definition of ‘document of an agency’ does not require the document to be related
to the functions or activities of the agency, only that the document is in the possession
of the agency.32
2.47 As noted at [2.57], a document in the possession of a staff member providing support
functions to a minister has been held in the Victorian Court of Appeal to be a document
in the minister’s possession and the inference of constructive possession could be
drawn by virtue of the employment relationship.33
Documents held by Commonwealth contractors
2.48 A person may make an FOI request to an agency for access to a document held by a
contractor or subcontractor relating to the performance of a ‘Commonwealth contract’.
These documents are included in the definition of ‘document of an agency’ (s 4(1))
because of the requirement that contracts preserve the right to access to this
information.
2.49 Agencies are required by s 6C of the FOI Act to ensure that Commonwealth contracts
entered into on or after 1 November 2010 contain contractual measures that enable the
agency to obtain any document when an FOI request is received. The term
‘Commonwealth contract’ is defined in s 4(1) to mean a contract:
• to which the Commonwealth or an agency is or was a party
30 In
McLeod and Social Security Appeals Tribunal [2014] AICmr 34 at [20] the Information Commissioner noted that a
question may arise as to whether documents created by a person in an official capacity but not stored in the record
system of an agency are documents that are ‘in the possession of the agency’. It was said that this issue could arise in
many other situations in which documents created by an agency staff member or contractor are either not stored in
the agency’s record system or are viewed as personal working papers. The information Commissioner explained that
‘possession’ of a document is not limited to actual or physical possession, but can include constructive possession
where an agency has the right and power to deal with a document, regardless of where and by whom it is stored. As a
result, text messages on work issued mobile phones, documents on personal devices on which software has been
installed so the device can be used for work purposes, and public servants using applications such as ‘WhatsApp’ on
work issued devices to exchange text, images and video or audio messages may be ‘documents of an agency’ on the
basis that they can be said to be within the constructive possession of the agency.
31 In
Brett Goyne and Australian National Audit Office [2015] AICmr 9 the Information Commissioner considered that
documents within the possession of the Australian National Audit Office (ANAO) would be within the ‘constructive
possession’ of the Auditor-General because the role of the ANAO is to assist the Auditor-General under the
Auditor-
General Act 1997 [26]. This is consistent with the listing of the Auditor-General as an ‘Exempt agency’ (within Schedule
2 of the FOI Act) being extended to the ANAO.
32
‘OV’ and Commonwealth Scientific and Industrial Research Organisation (Freedom of information) [2018] AICmr 48 [23], [25]–
[26].
33
Office of the Premier v Herald and Weekly Times [2013] VSCA 79 [66].
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• where services are or were to be provided under the contract on behalf of an agency to a
person who is not the Commonwealth or an agency34 and
• in which the services are in connection with the performance of the agency’s functions or
the exercise of its powers.
2.50 In summary, in relation to contracts entered into on or after 1 November 2010, the
FOI Act confers a right of access to documents held or created by a contractor or
subcontractor relating to their provision of services on an agency’s behalf to the public
or a third party. If an agency receives an FOI request for access to such a document, the
agency is to take action to obtain a copy of the document from the contractor or
subcontractor, and then decide whether access is to be given to that document under
the FOI Act.
2.51 A person who has been given access to a document of this kind may apply to the agency
under s 48 of the FOI Act to amend or annotate the personal information in the
document about that person. However, s 48 applies only if the personal information ‘has
been used, is being used or is available for use by the agency or Minister for an
administrative purpose’.
2.52 If the agency collects, uses, has access to, or relies on, personal information to perform
its functions, this is personal information that has been used, is being used, or is
available for an ‘administrative purpose’. This requirement will not be satisfied only
because the agency has a right to obtain the document from the contracted service
provider under a contract to which s 6C applies. Therefore, where a contracted service
provider gives an agency access to a database that contains a wide range of personal
information, not all the personal information may be available for use by the agency for
an administrative purpose. It is relevant to consider whether the individual provided
their personal information to the contracted service provider for limited purposes that
do not extend to provision of the information to the agency. The purpose that the
information was provided by the individual may be evidenced by:
• a written agreement between the individual and the contractor
• information such as in a booklet or brochure that was provided to the individual prior to
them providing their personal information to the contractor or
• evidence from the individual and the contractor of the context within which the
personal information was provided.
2.53 In addition, it is relevant to consider the terms under which the agency or minister has
access to the database that is owned by the contractor.
2.54 Whether personal information has been used or is being used by the agency or minister
for an administrative purpose is a question of fact. This question must be determined by
34
In ‘LI’ and Department of Education and Training (Freedom of information) [2017] AICmr 41 [18] the Australian
Information Commissioner found that the requested documents were likely held by a ‘Block Grant Authority’ which
received and assessed applications and made recommendations to the Minister under a funding agreement. The
Information Commissioner said that the funding was by way of a capital grant and did not form part of a
Commonwealth contract as defined in s 4(1) of the FOI Act. In
Michael Leichsenring and Department of Defence
(Freedom of information) [2024] AICmr 70
(7 April 2024) [21]–[22] the relevant contract provided for services to be
provided to the Commonwealth and not to ‘a person who is not the Commonwealth or an agency’ as required by the
definition of ‘
Commonwealth contract’ in s 4(1) of the FOI Act. As a result, the Assistant Commissioner decided the
relevant contract was not a ‘document of an agency’ under s 4(1) of the FOI Act.
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considering firstly whether the information is personal information, secondly whether
the information was used or is currently being used by the agency and thirdly, whether
the information was used or is being used in the course of performing the functions of
the agency. Whether the information is available for use by the agency or minister is also
a question of fact. This depends on whether the agency or minister has a right to access
the information in question (see [2.45] above).
2.55 The Information Commissioner has published an agency resource containing guidance
material about s 6C and a model clause that agencies can include in relevant contracts.35
Official documents of a minister
2.56 An ‘official document of a minister’ means a document in a minister’s possession in their
capacity as a minister, being a document that relates to the affairs of an agency (s 4(1)).
2.57 The first element of this definition is that a document is ‘in the possession of a Minister
… in his or her capacity as a Minister’. This includes a document in the possession of a
minister’s office, and is not confined to a document that is personal y held by the
minister. For example, under a similar provision in Victoria it was held that an electronic
diary maintained by the Premier’s Chief of Staff in providing support functions to the
Premier was a document in the Minister’s possession.36
2.58 ‘Possession’ of a document can also include constructive as wel as actual possession:
see [2.45]. Section 4(1) further provides that a document is in a minister’s possession if
the minister is entitled to access a document that has passed from their possession,
other than a document that is a document of an agency. See the discussion at [2.68]
concerning documents that a minister has placed in the care of the National Archives of
Australia and at [2.65] in relation to briefing materials returned to a department.
2.59 The second element of the definition is that a document in the minister’s possession
‘relates to the affairs of an agency’. This phrase is to be understood broadly as
encompassing documents that relate to matters within the portfolio responsibility of a
minister or the business or activities of an agency.37 The content of a document and the
context in which it was created or held wil be important.38
2.60 Documents held by a minister that have been found to relate to the affairs of an agency
include:
• entries in the Prime Minister’s appointments diary relating to meetings with other
political leaders to discuss the legislative program39
• a letter to the Prime Minister from a former Prime Minister conveying views on issues of
national policy40
35 See OAIC website ‘What is an agency's obligations on a Commonwealth contract? | OAIC’.
36
Office of the Premier v Herald and Weekly Times [2013] VSCA 79 [65]–[66].
37
Fletcher and Prime Minister of Australia [2013] AICmr 11 [20] and
Office of the Premier v Herald and Weekly Times [2013]
VSCA 79 [79]. This was also considered by the Western Australian Information Commissioner in
West Australian Newspapers
Ltd and Department of the Premier and Cabinet, Re [2015] WAICmr 9 by the [42]–[69].
38
Dreyfus and Attorney-General (Commonwealth of Australia) (Freedom of Information) [2015] AATA 995 [63]–[64].
39
Fletcher and Prime Minister of Australia [2013] AICmr 11.
40
Parnell and Department of the Prime Minister and Cabinet [2012] AICmr 31.
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• a reference written by a minister on official letterhead41 and
• a work diary of a ministerial adviser (in a Victorian decision).42
2.61 Documents held by a minister that do not ‘relate to the affairs of an agency’ include:
• personal documents of a minister or the minister’s staff
• documents of a party political nature43
• documents held in the minister’s capacity as a local member of parliament not dealing
with the minister’s portfolio responsibilities.44
2.62 Examples of documents that do not relate to the affairs of an agency include entries in
the Prime Minister’s appointments diary relating to meetings with business leaders at
the annual national party conference45 and a letter to the Prime Minister from an
organisation established to provide support to the political party headed by the Prime
Minister.46
Change of Minister47
2.63 Where there is a change of minister,48 obligations under the FOI Act continue. Although
outgoing ministers will either transfer or destroy different categories of documents
when ceasing office,49 agencies and ministers should take all reasonable steps to
preserve the rights of access provided in the FOI Act.50 This includes continuing to
process FOI requests on hand, preserving documents requested prior to the change of
minister, and preserving an FOI applicant’s review rights.
2.64 Where an FOI request is made to a minister and there is a change of minister before a
decision is made on the request, consideration of the FOI request wil fal to the new
minister.51
41
Parnell and Minister for Infrastructure and Transport [2011] AICmr 3 [14].
42
Office of the Premier v Herald and Weekly Times [2013] VSCA 79.
43 See
The Australian and Prime Minister of Australia [2016] AICmr 84 [17] in which the Information Commissioner identified the
fol owing diary entries as relating to party political events and which were therefore did not relate to the affairs of an agency:
meetings between the Prime Minister and various members of the Liberal National Coalition, some of whom were serving
Ministers; entries pertaining to meetings between the Prime Minister and members of the Liberal National Coalition who were
not serving Ministers; entries for party political events scheduled for the Prime Minister’s attendance.
44
Re Michael Nassib Said and John Dawkins, MP [1993] AATA 9.
45
Parnell and Prime Minister of Australia (No. 2) [2011] AICmr 12.
46
Parnell and Prime Minister of Australia [2011] AICmr 10.
47 The law relating to documents in the possession of a minister, where there is a change in minister, is not settled given a
current appeal to the Full Federal Court of Australia from the decision in
Patrick v Attorney-General (Cth) [2024] FCA 268 .
Agencies and ministers should be aware that the information in this section reflects the judgement subject to that appeal and
wil be updated should the outcome of the appeal change this position.
48 Information about the circumstances in which changes to ministerial arrangements occur and the principles to be applied are
set out in the APSC publication ‘Ministerial Transitions – Strengthening Partnerships’ issued November 2021 (available from
the APSC website Ministerial Transitions | Australian Public Service Commission (apsc.gov.au)).
49 See ‘Quick reference guide to General Records Authority 38 – Ministers of State’ which is available on the National Archives
website at Quick reference guide to General Records Authority 38 – Ministers of State | naa.gov.au).
50 Section 11 of the FOI Act.
51
Patrick v Attorney-General (Cth) [2024] FCA 268 [123]. See also s 20 of the
Acts Interpretation Act 1901 which provides that the
holder or occupier of an office, appointment or position includes al persons who for the time being hold or occupy the office,
appointment or position or who perform the duties of the office, appointment or position.
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2.65 A document does not cease to be an ‘official document of a minister’ if the new minister
does not have possession of the document. The status of the document as an ‘official
document of a minister’ is to be decided by the facts and circumstances that existed at
the time the FOI request was received.52 If a minister received and returned a document,
such as a briefing from a portfolio department, the document is a document of the
department and not an official document of the minister. However, a copy of such a
document retained by the minister is an official document of the minister.
2.66 Further, because an FOI decision to refuse access to a document is subject to review
(and as a result, the decision may be set aside or varied) there is an obligation on
ministers to preserve both the documents and the FOI applicant’s review rights. In
circumstances where the agency undertakes FOI functions on behalf of a minister and
there is a change of minister those obligations also apply.53
2.67 The provisions of the FOI Act relating to the amendment and annotation of personal
records also apply to the official documents of ministers (s 48). That is, a person may
apply to a minister to amend or annotate an official document that is claimed to contain
incomplete or incorrect personal information about the person making the application
(see Part 7 of these Guidelines).
Archived ministerial documents 2.68 A document that a current or former minister has placed in the care of the National
Archives of Australia is not a document of an agency (s 13(1)). Access to archived
documents is governed principal y by the
Archives Act 1983. Access wil be available
under the FOI Act in 2 situations:
• The first is where an agency has a copy of a document placed by a minister in the
National Archives.
• The second could arise under s 4(1) of the FOI Act, which provides that an official
document of a minister includes a document that has passed from the minister’s
control ‘if he or she is entitled to access to the document and the document is not a
document of an agency’. Neither the FOI Act nor the Archives Act expressly provides
that a current minister has a right of access to a document that the minister has
transferred to the National Archives of Australia, however there is nothing in the
Archives Act that prevents access by a current minister to such documents.
Documents in certain institutions
2.69 If an agency places:
• a document in the memorial col ection within the meaning of the
Australian War
Memorial Act 1980
• a document in the collection of library materials maintained by the National Library of
Australia
• material in the historical material in the possession of the Museum of Australia
• a document in the care of the National Archives of Australia (other than as a document
relating to the administration of the National Archives) or
52
Patrick v Attorney-General (Cth) [2024] FCA 268 [99].
53
Patrick v Attorney-General (Cth) [2024] FCA 268 [108] and [115].
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• a program or related material in the col ection of the National Film and Sound Archive
of Australia
the document is deemed to be in the possession of the agency that transferred the
document (s 13(2)). If that agency no longer exists, the document is deemed to be in the
possession of the agency with functions to which the document is most closely related. A
person seeking access to the document can make an FOI request to the relevant agency,
which must retrieve the document from the institution to meet the request.
2.70 A document is not deemed to be a ‘document of an agency’ by reason of its being in one
of the col ections outlined above if a person (including a minister or former minister)
other than an agency, placed the document in the care or custody of the relevant
institution (s 13(1)).
2.71 Documents that are in the custody of the National Archives of Australia and are within
the open access period are discussed below at [2.73].
Records of commissions of inquiry
2.72 Records of certain commissions of inquiry are also deemed to be ‘documents of an
agency’ and within the possession of the relevant agency, as fol ows:
• records of a Royal Commission that are in the care of the National Archives of
Australia are taken to be documents of an agency and in the possession of the
department responsible for the
Royal Commissions Act 1902 (currently the Attorney-
General’s Department) (s 13(3)(a))
• records of the Commission of Inquiry (as defined under the now repealed
Quarantine Act 1908)54
that are in the care of the National Archives of Australia are
taken to be documents of an agency and to be in the possession of the Agriculture
Department (within the meaning of the
Biosecurity Act 2015) (s 13(3)(b))
• records of a Commission of Inquiry under the
Offshore Petroleum and Greenhouse Gas
Storage Act 2006 that are in the custody of the National Archives are taken to be
documents of an agency and in the possession of the department responsible for the
Offshore Petroleum and Greenhouse Gas Storage Act (s 13(3)(c)).
Documents open to public access and not available under the
FOI Act
2.73 As discussed above, the right to obtain access under the FOI Act does not apply to al
documents that are in the possession of agencies that are subject to the FOI Act. The
FOI Act does not apply to documents of the fol owing kinds that are open to public
access under other arrangements:
54 The Commission of inquiry referred to in s 13(3) relates to the equine influenza outbreak in Australia in 2007 and related
matters.
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• the document or a copy of it is within the open access period as defined in the
Archives
Act,55 unless the document contains personal information, including personal
information about a deceased person (s 12(1)(a)56
• the document is already publicly available, as part of a public register or in accordance
with an enactment where a fee or other charge may apply (s 12(1)(b)).57 An example of a
public register is a register of births, deaths and marriages. A consumer protection
register is an example of a register created under an enactment. This extends to
documents that are available to the public in accordance with arrangements made
between the agency and a publisher.58
• the document, under a State or Territory law, is open to public access as part of a land
title register subject to a fee or charge (s 12(1)(ba))
• the document is made available for purchase by the public in accordance with
arrangements made by an agency (s 12(1)(c)).59
Personnel records
2.74 If an agency has established procedures for access to personnel records, an employee or
former employee may only apply for access to their records under the FOI Act in limited
circumstances (s 15A). A personnel record means those documents containing personal
information about an employee or former employee that an agency has kept for
personnel management purposes (s 15A(1)). An application under the FOI Act for access
to those records may only be made where the employee or former employee has made a
request under those agency procedures and is either:
• not satisfied with the outcome or
• has not been notified of the outcome within 30 days (s 15A(2)).
55 The open access period is defined in s 3(7) of the
Archives Act 1983 and in ss 22A (cabinet notebooks) and 22B (census
information).
56 In
Park-Kang and Secretary, Department of Foreign Affairs and Trade (Freedom of information) [2015] AATA 703,
Member Webb found (at [22]) that while s 12(1)(a) of the FOI Act removed a person’s entitlement under that
enactment to obtain access to a document within the ‘open access period’ determined under the Archives Act, s 12(1)
does not act negatively upon an applicant’s accrued right to review, or to the right of access that crystallized under
the FOI Act at the time that he made his request. This is so because the applicant’s FOI request and application for
review under the FOI Act were made before the records in question crossed the ‘open access period’ threshold under
the Archives Act.
57 In
Knapp and Australian Accounting Standards Board [2014] AATA 744, the AAT considered the meaning of ‘available for
purchase’ at [24]–[26]) and found that the documents must be capable of being obtained without undue delay and in
a condition that the public can take advantage of them.
58
Lester and Commonwealth Scientific and Industrial Research Organisation [2014] AATA 646 [22].
59
Lester and Commonwealth Scientific and Industrial Research Organisation [2014] AATA 646 [27]–[28].
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Contents
Administering the FOI Act — general considerations
4
Key principles
4
Access to government information — administrative release
4
Principles of good decision making under the FOI Act
5
Right of access
10
Reasons for a request
10
The applicant’s identity
11
Requests by agents and groups
11
The formal requirements of an FOI access request
12
Assisting an applicant
13
Interpreting the scope of a request
14
Transferring requests to other agencies
15
Timeframe
15
Notifying the applicant
16
Transfer of requests with agreement
16
Mandatory transfer of requests
16
Transfer of requests without revealing existence of documents
17
Consultation
17
Consultation with other agencies
17
Consultation with the applicant
18
Consultation with third parties
18
Decisions on requests for access to documents
19
Refusing access to an exempt document
20
Refusing a request for a document that does not exist, cannot be found or is not received from a
contractor
20
Deleting exempt or irrelevant content from a document
23
Deferring access to a document
24
Refusing to confirm or deny existence of a document
24
Refusing access when a practical refusal reason exists
25
Timeframe for notifying a decision
32
Default period for requests for access
32
Timeframe applying to requests for amendment or annotation of personal records
33
Internal review
33
Extending the decision notification period
33
Extension of time with agreement under s 15AA
34
Applying to the Information Commissioner for an extension of time under s 15AB
35
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Deemed decisions
36
Information Commissioner’s power to grant an extension of time following a deemed decision
37
Statement of reasons
38
Content of a s 26 statement of reasons
38
Requirement to provide better reasons
41
Other notices of decision
41
Giving applicants access to documents
42
Charges
43
Third party review opportunities
43
Providing access in stages
44
Form of access
45
Information stored in electronic form
46
Charges for alternative forms of access
47
Protections when access to documents is given
47
Actions for defamation, breach of confidence or infringement of copyright
47
Offences
48
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