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Published date: 7 May 2024

Download the consultation draft.

Download the consultation draft.

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 2 of the FOI Guidelines: Scope of application of the Freedom of Information Act 1982 (v 1.7).

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 2 of the FOI Guidelines is to provide an overview of the agencies subject to the FOI Act and the documents that are available to access under the FOI Act. The proposed revisions to Part 2 aim to improve readability, reflect legislative changes to the FOI Act since the last version of Part 2 was issued in December 2016 and reflect relevant Federal Court, Administrative Appeals Tribunal and Information Commissioner review decisions.

Key changes

  1. NBN Co has been added as a prescribed authority.
  2. [2.7] has been updated to include the Parliamentary Librarian, the Department of the Senate, and the Department of the House of Representatives (and their staff) as excluded from the operation of the FOI Act.
  3. [2.9] adds a reference to Norfolk Island.
  4. [2.13] adds the Australian Signals Directorate and Office of National Intelligence to the list of agencies excluded from the FOI Act under Schedule 2, Part I, Division 1 of the FOI Act.
  5. [2.15] adds the Parliamentary Workplace Support Service, the Parliamentary Workplace Support Service Advisory Board and the Parliamentary Workplace Support Service Consultative Committee as entities not subject to the FOI Act.
  6. [2.22] adds additional information in relation to the FOI Act’s application to Royal Commissions.
  7. [2.23] has been updated to clarify that data shared under the Data Availability and Transparency Act 2022 is excluded from the operation of the FOI Act.
  8. [2.24] updates the previous version of Part 2 with respect to information held by Australian Government agencies that originated with, or has been received from AUSTRAC.
  9. [2.32] clarifies that if a department assists a minister process an FOI request, complaints about the way the FOI request was handled are subject to the Information Commissioner’s complaint handling jurisdiction (noting that the Information Commissioner does not have power to investigate the same action taken by a minister).
  10. [2.61] to [2.62] (official documents of a minister) has been updated to reflect the Federal Court decision of Patrick v Attorney-General (Cth) [2024] FCA 268.
  11. The following IC review decisions have been added:
  • Jonathan Sequeira and Australian Broadcasting Corporation (Freedom of information) [2023] AICmr 23 [29] in relation to program material
  • ‘OV’ and Commonwealth Scientific and Industrial Research Organisation (Freedom of information) [2018] AICmr 48 [23], [25]–[26] in relation to .documents of an agency
  • ‘LI’ and Department of Education and Training (Freedom of information) [2017] AICmr 41 in relation to Commonwealth contracts
  • Michael Leichsenring and Department of Defence (Freedom of information) [2024] AICmr 70in relation to Commonwealth contracts
  • The Australian and Prime Minister of Australia [2016] AICmr 84 in relation to official documents of a minister.

How to make comments

Submissions can be sent to:

Email: FOIGuidance@oaic.gov.au

Post: GPO Box 5218 Sydney NSW 2001

This consultation is closed. The deadline for submissions was 5 June 2024.

The OAIC intends to publish all submissions on the OAIC website. The OAIC is unable to consider any submission made in confidence, so please ensure 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.

Related page

Version 1.6 of Part 2 of the FOI Guidelines - Part 2: Scope of application of the Freedom of Information Act 1982.

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The OAIC acknowledges Traditional Custodians of Country across Australia and their continuing connection to land, waters and communities. We pay our respect to First Nations people, cultures and Elders past and present.

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