Consultation on draft revisions to Part 5 of the FOI Guidelines: Exemptions

Publication date: 19 June 2023

This consultation is closed. The deadline for submissions was 31 July 2023.

The Office of the Australian Information Commissioner (OAIC) is seeking comments from interested stakeholders on the content, practical implications, readability and accessibility of draft revisions to the ‘FOI Guidelines: Part 5 – Exemptions’.

Background

The Australian Information Commissioner can issue guidelines about the Freedom of Information Act 1982 (FOI Act) under s 93A. This section also requires Australian Government ministers and agencies to have regard to these guidelines when performing a function or exercising a power under the FOI Act.

The purpose of Part 5 of the FOI Guidelines is to provide detailed information on how to interpret the FOI Act dealing with exempt documents under Part IV. The proposed revisions to the Guidelines aim to improve readability and reflect recent Administrative Appeals Tribunal (AAT) and Information Commissioner review (IC review) decisions. Key changes include updates to guidance on the application of:

1. section 33 concerning documents affecting national security, defence or international relations
2. section 34 concerning documents disclosing a deliberation or decision of the cabinet
3. section 42 on documents subject to legal professional privilege
4. section 45 on documents containing material obtained in confidence.

The updates to the guidelines also include an increased emphasis on agencies’ and ministers’ discretion to provide access to a document where the law permits, even if the document is exempt under Part IV of the FOI Act.

How to make comments

Submissions can be made via:

This consultation is closed. The deadline for submissions was 31 July 2023.

We intend to make all submissions publicly available. Please indicate when making your submission if it contains confidential information that you do not want made public and why it should not be published. Requests for access to confidential comments will be determined in accordance with the FOI Act. If the OAIC accepts submissions in confidence, you must also provide a copy that can be published.

Although you may lodge submissions electronically or by post, electronic lodgement is preferred. To help us meet our accessibility obligations, we would appreciate you providing your submission in a web accessible format or, alternatively, in a format that will allow us to easily convert it to HTML code — for example Rich Text Format (.rtf) or Microsoft Word (.doc or .docx) format.

Privacy collection statement

The OAIC will use the personal information it collects in the course of this consultation for the purpose of finalising the updates to the guidelines and our ongoing engagement with you.

Submissions received

The OAIC received submissions on the proposed revised content to Part 5 of the FOI Guidelines from:

• Attorney-General’s Department [79.8KB]
• Department of Defence [223.6KB]
• Department of Foreign Affairs and Trade [299.6KB]
• Department of Prime Minister and Cabinet [187.5KB]
• Dr Adrian Bradford [176.7KB]
• Law Council of Australia [128.2KB]

The OAIC will consider the feedback. We will publish the final changes on Freedom of information guidelines. We will also explain the changes through our Information Contact Officer Network (ICON) and in our newsletter, Information Matters.