Federal Register of Legislation - Australian Government

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Determinations/Other as made
This Determination prescribes two categories of information that an agency or Minister is not required to make available to members of the public as part of a disclosure log published under s 11C(3) of the Act.
Administered by: Attorney-General's
Registered 12 Oct 2011
Tabling HistoryDate
Tabled HR13-Oct-2011
Tabled Senate13-Oct-2011
Date of repeal 19 Mar 2014
Repealed by Spent and Redundant Instruments Repeal Regulation 2014

 

 

 

 

Explanatory Statement

 

Freedom of Information Act 1982
Disclosure Log Determination No. 2011-1
(Exempt Documents)

September 2011

 

 

 

 


Explanatory Statement

Freedom of Information Act 1982
Disclosure Log Determination No. 2011-1

(Exempt Documents)

This explanatory statement has been prepared by the Australian Information Commissioner. It explains the scope and intended operation of Disclosure Log Determination No. 2011-1 made under s 11C(2) of the Freedom of Information Act 1982 (Cth) (the Act).

Purpose

Section 11C(3) of the Act requires agencies and Ministers to publish information that has beenreleased in response to each freedom of information access request on their websites subject to certain exceptions. This publication is known as a ‘disclosure log’.

The disclosure log requirement does not apply to any of the following:

a)             personal information about any person, if it would be ‘unreasonable’ to publish the information (s 11C(1)(a))

b)             information about the business, commercial, financial or professional affairs of any person, if publication of that information would be ‘unreasonable’ (s 11C(1)(b))

c)              other information of a kind determined by the Information Commissioner if publication of that information would be ‘unreasonable’ (s 11C(1)(c))

d)             any information if it is not reasonably practicable to publish the information because of the extent of modifications that would need to be made to delete information listed in one of the above dot points (s 11C(1)(d)).

The purpose of Determination No. 2011-1 is for the Commissioner to prescribe for the purposes of s 11C(1)(c), information referred to in paragraph (a) or (b) to which an agency or Minister has given access to an applicant under s 11A of the Act:

a)             information in a document that was an exempt document at the time that access was given by the agency or Minister to the applicant

b)             information in a document that the agency or Minister would have decided was an exempt document at the time that access was given to the applicant, if the request for that document had been received from a person other than the applicant.

Reasons for making the determination

The Act gives every person a legally enforceable right to obtain access to documents of an agency and official documents of a Minister other than exempt documents (s 11). The phrase ‘exempt document’ is defined in ss 4 and 31B as meaning:

·                a document that is exempt under Part IV Division 2

·                a document that is conditionally exempt under Part IV Division 3, if access to the document at that time would, on balance, be contrary to the public interest

·                a document in respect of which an agency, person or body is exempt from the operation of the Act under s 7, and

·                an official document of a Minister that contains some matter that does not relate to the affairs of an agency or Department of State.

The Act does not limit an agency’s or Minister’s power to give access to information or a document that is exempt under the Act (s 3A).

Paragraph 1(a) of Determination No. 2011-1 relieves an agency or Minister of any obligation to publish in a disclosure log an exempt document that has been released to an applicant, where publication would be unreasonable. The effect of paragraph 1(a) is thatan agency or Minister may decide that it is appropriate to provide access to the particular applicant but it would be unreasonable to publish the document more widely. For example, an agency may have released an exempt document to a particular applicant in connection with a research project, in connection with legal proceedings in which the applicant is involved, or because the confidential nature or commercial value of information in a document would not be jeopardised by selective release. In these circumstances, under paragraph 1(a) of Determination No. 2011-1, the agency may decide that it is unreasonable to publish this information more widely in a disclosure log.

Paragraph 1(b) of Determination No. 2011-1 recognises that the exempt status of a document can depend on the identity of the applicant. That is, a document may not be an exempt document when it is released to a particular applicant, but would be an exempt document if another person sought access to it. For example, it would not be an unreasonable disclosure of personal information or contrary to the public interest to release to a person a document that relates specifically and only to them (s 47F). However, it may be an unreasonable disclosure or contrary to the public interest to release that document to another person, including by publishing that document in a disclosure log that is available to the general public. The identity of the applicant is similarly relevant in applying the conditional exemption for business affairs (s 47G).

Operation

This determination will remain in force for a period of 2 years from the date of commencement.

The disclosure log provisions in the Act, including the determination mechanism in s 11C(2) came into effect on 1 May 2011. At the time of making this determination these provisions include requirements and procedures that are new and have not been tested. The operation and effect of this determination will require review in 2 years.

Definitions

In this determination:

a)             agency, applicant and exempt document have the same meaning as in section 4 of the Act, and

b)             disclosurelog means the publication under s 11C of information that has been released to an applicant under the Act.

Consultation

In March 2011, the Information Commissioner published a discussion paper on the new disclosure log provisions in the Act for public comment.  The discussion paper, among other things, invited comments about classes of information which should be exempted from the operation of s 11C by a determination made by the Information Commissioner.

The discussion paper was available on the Office of the Australian Information Commissioner’s (OAIC) website over a three week consultation period. It was also published for comment on the govspace blog[1] and on govdex.[2] The OAIC also contacted relevant stakeholders by email to inform them that the discussion paper was available for comment.

The OAIC received nineteen written submissions in response to the discussion paper. The submissions are available on the OAIC website.[3] A number of these submissions made suggestions about classes of information which should be exempted from the operation of s 11C by a determination made by the Information Commissioner. Following consideration of these suggestions, the Information Commissioner prepared Determination No. 2011-1.

In July 2011, the Information Commissioner published draft Determination No. 2011-1 and explanatory statement for public comment. These documentswere available on the OAIC’s website over a three week consultation period. The OAIC used govdex to publicise this consultation. The OAIC also contacted relevant stakeholders by email to inform them about the consultation.

The OAIC received two written submissions in response to this consultation. The submissions are available on the OAIC website.[4] The Information Commissioner took these submissions into account in preparing Determination No. 2011-1 and the explanatory statement.