Information Publication Scheme and disclosure log determinations policy and procedure

Introduction

Part 2 of the Freedom of Information Act 1982 (FOI Act) establishes an Information Publication Scheme (IPS) for Australian Government agencies subject to the Act. The IPS requires agencies to publish a broad range of information on their websites, and to make it available for downloading where possible (s 8(2)). In addition, agencies and ministers must publish information that has been released in response to each freedom of information (FOI) access request, subject to certain exceptions (s 11C). This publication is known as a ‘disclosure log’.

The Australian Information Commissioner may relieve an agency (and, for the disclosure log, ministers) from the requirement to publish certain information under the IPS and disclosure log, if in the Commissioner’s view, it would be unreasonable to publish the information (ss 8(2)(g)(iii), 8(3), 11C(1)(c) and 11C(2)):

• under s 8(3), the Information Commissioner may relieve an agency from the obligation to publish certain information that the agency routinely gives access to in response to FOI access requests, which would otherwise have to be published under the IPS (s 8(2)(g))
• under s 11C(2), the Information Commissioner may relieve an agency or minister from the obligation to publish certain information to which the agency or minister gives access under the FOI Act, which would otherwise have to be published in an agency or minister’s disclosure log (s 11C(1)).

This policy and procedure is to assist agencies, ministers, organisations and individuals (ie an affected person) to understand the process for applying for a determination.

Before submitting an application for a determination, an affected person is encouraged to approach the Office of the Australian Information Commissioner (OAIC) for advice about whether to make an application, the application process and procedures.

Determinations powers

IPS determinations – routinely accessed information (s 8(3))

Under the IPS, agencies are required to publish information in documents to which the agency routinely gives access in response to FOI requests under Part III (s 8(2)(g)).

There are three exceptions:

• personal information about any individual, if it would be unreasonable to publish the information (s 8(2)(g)(i))
• information about the business, commercial, financial or professional affairs of any person, if publication of that information would be ‘unreasonable’ (s 8(2)(g)(ii))
• other information of a kind determined by the Information Commissioner under s 8(3), if publication of that information would be ‘unreasonable’ (s 8(2)(g)(iii)).

Section 8(3) states that the Information Commissioner may by legislative instrument make a determination for the purposes of s 8(2)(g)(iii).

The Information Commissioner may make this determination following an application by an affected person (including an agency, organisation or individual) or at the Commissioner’s own initiative.

For more information about the IPS requirements see Part 13 – Information Publication Scheme of the Guidelines issued under section 93A of the Freedom of Information Act 1982 (the guidelines) available on the OAIC website.

Disclosure log determinations (s 11C(2))

Agencies and ministers must publish a disclosure log on their websites (s 11C). The disclosure log lists information that has been released in response to an FOI access request for documents held by the agency or minister.

The disclosure log requirement does not apply to:

• personal information about any individual, if it would be unreasonable to publish the information (s 11C(1)(a))
• information about the business, commercial, financial or professional affairs of any person, if publication of that information would be ‘unreasonable’ (s 11C(1)(b))
• other information of a kind determined by the Information Commissioner under s 11C(2) if publication of that information would be ‘unreasonable’ (s 11C(1)(c))
• 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)).

Section 11C(2) states that the Information Commissioner may by legislative instrument make a determination for the purposes of s 11C(1)(c).

The Information Commissioner may make this determination following an application by an affected person (including an agency, minister, organisation or individual) or at the Commissioner’s own initiative.

For more information about the disclosure log requirements see Part 14 of the guidelines on disclosure logs.

Factors relevant in making a determination

In deciding whether to make a determination, the Information Commissioner may consider matters such as:

• the extent to which publication of the information in question would further the objects of the FOI Act (s 3)
• whether there is an established and reasonable public demand for the information
• the estimated resource requirement for an agency to publish the information, and whether this would require an unreasonable diversion of agency resources.

A determination may apply to information of a general kind that is held by many agencies or ministers, or to information of a specific kind held by a particular agency or minister.

Procedures

Step 1: Approach the OAIC

Before making an application for a determination under either s 8(3) or s 11C(2), an affected person is encouraged to approach the OAIC to discuss the application.

Step 2: Lodge an application

The affected person should lodge an application with the Information Commissioner.

Form of application

If an affected person decides to make an application for a determination under s 8(3) or 11C(2), the application should be in writing and addressed to the Australian Information Commissioner.

Applications should be sent to the OAIC by:

• email to FOIDR@oaic.gov.au
• post to:

  The Australian Information Commissioner
  Office of the Australian Information Commissioner
  GPO Box 5288
  Sydney NSW 2001

Content of applications

An application for a determination under s 8(3) or s 11C(2) should, so far as practicable, include the following information:

• the name and contact details of the affected person applying for a determination
• a detailed description of the kind of information proposed to be covered by a determination
• for determinations under s 8(3), the reasons why the information is considered to be routinely accessed, including
  • whether the determination would apply to information in a particular document type or in a category of documents
  • if the determination would apply to a category of documents, an explanation that the information is routinely accessed – this may include a list of factors explaining how documents within the category are substantially similar
  • the level or potential level of public interest in the information
  • whether further requests for the information are likely
  • whether providing access to the information promotes the objects of the FOI Act (s 3(3))
• the reasons why the agency or minister cannot readily publish the information on a website as required under s 8D(3) or s 11C(3) by:
  • making the information available for downloading from the website
  • publishing on the website a link to another website, from which the information can be downloaded, or
  • publishing on the website other details of how the information may be obtained
• the reasons why it would be unreasonable to expect the agency or minister to publish the information including:
  • details of any technical, resourcing or financial issues (including estimated costs) affecting publication and whether these could be addressed in the future
  • any other reasons specific to the agency or minister
• alternative approaches considered for complying with s 8(2)(g) or s 11C and the reasons these approaches would not be feasible
• if the affected person is aware that another person or class of persons opposes publication of the information
  • if known, the third party’s reasons for their opposition to the publication
  • the third party’s contact details (the affected person should seek the third party’s consent before providing this to the Information Commissioner)
• any other information that may be relevant to the Information Commissioner in making a determination under s 8(3) or s 11C.

Step 3: The OAIC will assess the application

Once an application has been made, the OAIC will assess whether the application contains all the information that is required for the Information Commissioner to decide whether to make a determination.

If further information is required, the OAIC will contact the affected person. Where appropriate, the OAIC may consult with any third parties.

Step 4: The Information Commissioner may make a draft determination

If the Information Commissioner intends to make a written determination relieving an agency or minister from the obligation to publish information under s 8(2)(g)(iii) or s 11C(1)(c), the Commissioner may prepare a draft determination.

The draft determination will describe:

• the kind of information that the agency or minister is relieved from publishing under s 8(2)(g)(iii) or s 11C(1)(c)
• the reasons for relieving the agency or minister from the requirement to publish the information.

Step 5: The Information Commissioner will consult on the draft determination

Consultation may include:

• publishing the draft determination on the OAIC website and inviting comments
• providing a copy of the draft determination to the affected person and any third parties.

Step 6: The Information Commissioner will make a written determination

If the Information Commissioner decides to relieve an agency or minister, from the obligation to publish information under s 8(2)(g)(iii) or s 11C(1)(c), the Information Commissioner will make a written determination.

It is the Information Commissioner’s intention to generally limit determinations to two years.

Determinations will take effect in accordance with s 12 of the Legislative Instruments Act 2003.

Step 7: The Information Commissioner may review the determination

After making a determination under s 8(3) or s 11C(2), the Information Commissioner may later review the determination and consult about whether it continues to be appropriate – including whether the circumstances have changed so that it is no longer unreasonable to publish information covered by a determination.

The Information Commissioner may repeal, rescind, revoke, amend or vary the determination (s 33(3) of the Acts Interpretation Act 1901).