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Publication date: 10 August 2023
The Office of the Australian Information Commissioner (OAIC) is seeking comments from interested stakeholders on the content, practical implications, readability and accessibility of updates to Part 6 of the FOI Guidelines: Conditional Exemptions (v 1.4).
Download the consultation draft: PDF version |Microsoft Word version
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 6 of the FOI Guidelines is to provide detailed information on interpreting and applying the conditional exemptions in Part IV of the FOI Act. The proposed revisions to Part 6 aim to improve readability and reflect recent Administrative Appeals Tribunal (AAT) and Information Commissioner review (IC review) decisions.
Key changes
1 Part 6 has been restructured to follow the decision-making process. That is, the conditional exemptions are detailed first, and then the public interest test follows (the current version of Part 6 opens with discussion of the public interest test). It is hoped this will provide greater assistance to decision makers (who do not need to consider the public interest test until and unless they have determined that the threshold for the application of the conditional exemption has been met).
2 The existing 6-step process of deciding whether documents are exempt under Division 3 of Part IV of the FOI Act (at [6.10] to [6.27]) has been deleted and relevant guidance incorporated into the introduction to the conditional exemptions and the beginning of the section on the public interest test. A new section ‘Decision making under Division 3 of Part IV’ has been added at [6.4] and a flow chart included at [6.5]. Both paragraphs provide an overview of the decision making process.
3 Sections on the application of the public interest test as it applies to specific conditional exemptions (for example, inhibition of frankness and candour and incoming government briefs in relation to s 47C and Commonwealth-State relations in relation to s 47B), which are currently included within the discussion of the condition exemptions, have been moved to the public interest section at the end of the Part.
4 The section dealing with public servants’ personal information under s 47F has been updated to reflect the reasoning in Warren; Chief Executive Officer, Services Australia and (Freedom of information) [2020] AATA 4557 and is supplemented by recent IC review decisions demonstrating the Information Commissioner’s approach in recent decisions. Discussion of public servants’ personal information has also been included under s 47E.
5 Currently the Guidelines are not clear as to whether there is an arrangement in place between the Commonwealth and States for the purposes of consultation under s 26A. This paragraph has been clarified and guidance provided to assist agencies undertake consultation.
6 The text has been supplemented throughout with reference to recent IC review, AAT and Federal Court Decisions.
How to make comments
Send your submission to:
| foidr@oaic.gov.au | |
| Post |
GPO Box 5218 Sydney NSW 2001 |
This consultation is closed. The deadline for submissions was 28 September 2023.
The OAIC intends to make all submissions publicly available. The OAIC is unable to consider any submission made in confidence, so please ensure that your submission does not contain confidential information that you do not want to be made public.
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 6 of the FOI Guidelines from:
- Attorney-General’s Department [142.9KB]
- Department of Education [128.9KB]
- Department of Employment and Workplace Relations [187.1KB]
- Law Council of Australia [214.8KB]
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.
