Freedom of Information Amendment Act 2019 (ACT)
Freedom of Information Amendment Act 2019
A2019-37
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Legislation amended 2
4 What is open access information?Section 23 (1), definition of open access information, of an agency, paragraph (d) 2
5 Section 23 (1), definition of open access information, of a Minister, paragraph (b) 3
6 Requirement for disclosure logSection 28 (6) 3
7 Section 31 heading 4
8 New section 31 (4) 4
9 Deciding access—identifying information within scope of applicationSection 34 (3) 4
10 New section 34 (4) to (7) 4
11 Deciding access—decision not made in time taken to be refusal to give accessNew section 39 (1A) 5
12 Section 39 (3) 6
13 Deciding access—time to decideSection 40 (2) 6
14 Deciding access—respondent may ask for additional time to decideSection 41 (3) (b) 7
15 New section 41 (4) 7
16 Section 42 7
17 Refusing to deal with application—information already available to applicantNew section 45 (ea) 9
18 Section 49 10
19 Access applications if two or more agencies or Ministers hold relevant informationSection 58 (1) 10
20 Section 58 (2) (c) (ii) and (4) 11
21 Applications for ombudsman reviewNew section 74 (1) (a) (ia) 11
22 Ombudsman review—extension of time when decision not made in timeSection 78 (4) 11
23 New section 80A 12
24 Mediation for applicationsNew section 81 (2) (c) 12
25 Ombudsman reviewSection 82 (1) 12
26 New section 82 (3) (c) to (e) 13
27 Review of decisions by ACATSection 84 (1) 14
28 Section 106 14
29 Dictionary, note 2 15
30 Dictionary, new definition of clarification request 15
Freedom of Information Amendment Act 2019
A2019-37
An Act to amend the Freedom of Information Act 2016
The Legislative Assembly for the Australian Capital Territory enacts as follows:
Name of Act
This Act is the Freedom of Information Amendment Act 2019.
Commencement
This Act commences on a day fixed by the Minister by written notice.
Note 1The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).
Note 2A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).
Note 3If a provision has not commenced within 6 months beginning on the notification day, it automatically commences on the first day after that period (see Legislation Act, s 79).
Legislation amended
This Act amends the Freedom of Information Act 2016.
What is open access information?
Section 23 (1), definition of open access information, of an agency, paragraph (d)substitute
(d)budget papers and Appropriation Acts presented to the Legislative Assembly under the Financial Management Act 1996;
Section 23 (1), definition of open access information, of a Minister, paragraph (b)
substitute
(b)for the Chief Minister—
(i)includes the following information about each Cabinet or Cabinet committee decision made after the commencement of this Act:
(A)a summary of the decision;
(B)the decision reference number;
(C)the date when the decision was made;
(D)the triple bottom line assessment for the decision; but
(ii)does not include information about a decision of Cabinet or a Cabinet committee in relation to a proposed budget for the Territory if the proposed budget has not been presented to the Legislative Assembly under the Financial Management Act 1996, section 10 (Budget papers).
Requirement for disclosure log
Section 28 (6)substitute
(6)A disclosure log must not include—
(a)an access application for personal information; or
(b)information about an applicant’s business, commercial, financial or professional affairs, the publication of which would be unreasonable in the circumstances.
Example
information about unsubstantiated food safety allegations made against the applicant’s business, the publication of which could unduly damage the reputation of the applicant’s business
Section 31 heading
substitute
Application not in accordance with requirements
New section 31 (4)
insert
(4)The agency or Minister need not deal further with the application if, despite the agency or Minister taking reasonable steps and giving the person reasonable time (but not less than 3 months) under subsection (2), the application is still not made in accordance with the requirements under section 30.
Deciding access—identifying information within scope of application
Section 34 (3)after
application
insert
(a clarification request)
New section 34 (4) to (7)
insert
(4)The respondent may suspend an access application if—
(a)the respondent has taken all reasonable steps to contact the applicant about a clarification request; and
(b)either—
(i)the respondent is unable to contact the applicant; or
(ii)the applicant does not respond to the clarification request.
(5)If the access application is suspended, the respondent must, in writing, tell the applicant—
(a)that the application has been suspended; and
(b)about the effect of subsection (6).
(6)The respondent—
(a)must decide the application if the applicant responds to the clarification request within 3 months after the request was made; but
(b)need not deal further with the application if it is suspended under subsection (4) for 3 months or longer.
(7)Subsection (6) (b) does not prevent the applicant from making another access application for the same information.
Deciding access—decision not made in time taken to be refusal to give access
New section 39 (1A)insert
(1A)Also, the respondent must give written notice to the ombudsman that a decision relating to an access application was not made within the time allowed if—
(a)under section 78, the ombudsman extends the time for the respondent to decide the access application (the extended time); and
(b)the respondent does not decide the access application within the extended time.
Section 39 (3)
substitute
(3)If notice is given to the ombudsman under subsection (1) (c), the relevant Minister must ensure that a copy of the notice is presented to the Legislative Assembly within 3 sitting days after the access application (including any review or appeal) is finally decided.
(3A)Subsection (3) does not apply if the ombudsman extended the time for the respondent to decide the access application under section 78.
Deciding access—time to decide
Section 40 (2)substitute
(2)The period under subsection (1) is extended by—
(a)if the respondent consults with a relevant third party under section 38—15 working days; or
(b)if the respondent makes a clarification request under section 34 (3)—the number of working days the applicant takes to respond to the clarification request; or
(c)if the respondent contacts the applicant under section 106 (2)—the number of working days the applicant takes to confirm or vary the application; or
(d)if the applicant makes an application to the agency or Minister to waive a fee under section 107—the number of working days the agency or Minister takes to decide the waiver application.
Example—par (b)
The respondent receives an access application on 1 February. The respondent contacts the applicant to clarify an aspect of the application and the applicant gives the respondent an answer 10 working days later. The respondent must decide the application not later than 30 working days after 1 February, being the 20 working days allowed under section 40 (1) plus the 10 working days the applicant took to answer the clarification request.
Deciding access—respondent may ask for additional time to decide
Section 41 (3) (b)substitute
(b)the applicant has not, within 7 working days after receiving the respondent’s request, refused the request; and
New section 41 (4)
insert
(4)The respondent must not ask the applicant for additional time under this section if the effect of the applicant agreeing to the additional time would be to give the respondent more than 12 months from the day of receiving the access application to decide the application.
Example
The respondent receives an access application on 1 March 2019. Under section 40, the respondent must make a decision on the application by no later than 1 April 2019 (20 working days after 1 March 2019). Before 1 April 2019, the respondent asks the applicant for an additional 9 months to decide the application. The applicant agrees and the respondent is then required to decide the application by 1 January 2020. Before 1 January 2020, the respondent asks the applicant for a further extension. The maximum extension that the respondent may ask for under subsection (4) is 2 months.
Section 42
substitute
Deciding access—extension of time given by ombudsman
(1)A respondent to an access application may apply to the ombudsman for an extension of time to decide the application if—
(a)the respondent has asked the applicant for an additional stated amount of time under section 41 and the applicant has refused the request; or
(b)section 41 (4) prevents the respondent from asking the applicant for an additional amount of time to decide the application.
(2)The application to the ombudsman must be made—
(a)before the end of the period for deciding the application under section 40; or
(b)if the time to decide the application has already been extended under section 41 or this section—before the end of the additional time last granted.
(3)The ombudsman may, on application under subsection (1), extend the time to decide an access application if the ombudsman believes it is not reasonably possible for the respondent to deal with the application within the period for deciding the application under section 40 or the period as extended under section 41 or this section because—
(a)the application involves dealing with a large volume of information; or
(b)the application is complex; or
(c)there are other exceptional circumstances.
Example—complex application
multiple, conflicting public interest factors apply to the information covered by the application and extensive third party consultation is required
(4)The ombudsman may extend the time to decide the access application for the period the ombudsman considers reasonable in the circumstances, having regard to—
(a)the objects of this Act; and
(b)the importance of encouraging timely resolution of access applications.
(5)The ombudsman may extend the time to decide the access application subject to conditions.
Examples—conditions
1 the respondent provides the ombudsman with regular updates on progress with the application
2 the respondent agrees to a timetable to progress the application
3 the respondent provides information progressively
(6)The ombudsman may cancel or amend an extension under subsection (4) if—
(a)the ombudsman considers it appropriate, having regard to the matters mentioned in subsection (4); or
(b)the respondent has not complied with a condition under subsection (5).
(7)The ombudsman must tell the respondent and the applicant about any extension, or cancellation or amendment of an extension, under this section.
Refusing to deal with application—information already available to applicant
New section 45 (ea)insert
(ea)has otherwise previously been given to the applicant; or
Section 49
substitute
Giving access—deferral of access
(1)The respondent to an access application may defer giving access to government information for a reasonable period (not longer than 3 months) if—
(a)the information was prepared with the intention that it be formally published within a stated time; and
(b)the information has not been published as intended.
Examples—formal publication
1 formal release of a report at an event
2 media release
3 presentation to the Legislative Assembly
(2)Also, the respondent to an access application may defer giving access to government information if the applicant has not paid the fee payable in relation to the application.
Access applications if two or more agencies or Ministers hold relevant information
Section 58 (1)omit
and relevant information and may
substitute
and relevant information may
Section 58 (2) (c) (ii) and (4)
after
decide the application
insert
, or part of the application,
Applications for ombudsman review
New section 74 (1) (a) (ia)insert
(ia)for a decision in relation to an access application for personal information—the day the respondent gave the applicant a decision notice in relation to the application under section 51; or
Ombudsman review—extension of time when decision not made in time
Section 78 (4)substitute
(4)An extension of time given by the ombudsman may be for the period the ombudsman considers reasonable in the circumstances, having regard to—
(a)the objects of this Act; and
(b)the importance of encouraging timely resolution of access applications.
New section 80A
insert
80AInformal resolution
(1)This section applies if the ombudsman considers that a matter to which an application for ombudsman review relates may be resolved by an informal process.
(2)The ombudsman may—
(a)assist the respondent and applicant to resolve the matter informally; and
(b)suspend the application of section 82 for up to 30 working days for the purpose of paragraph (a).
Mediation for applications
New section 81 (2) (c)insert
(c)suspend the application of section 82 for up to 30 working days for the purpose of paragraphs (a) and (b).
Ombudsman review
Section 82 (1)substitute
(1)This section applies to an application for ombudsman review.
(1A)Unless resolved informally under section 80A or by mediation under section 81, the ombudsman must review the decision and—
(a)confirm the decision; or
(b)vary the decision; or
(c)set aside the decision and make a substitute decision.
(1B)The ombudsman must make a decision under subsection (1A) within 30 working days after—
(a)if the ombudsman has, under section 80A (2) or section 81 (2), suspended the application of this section—the end of the period for which the application of this section is suspended; or
(b)in any other case—the day the application for ombudsman review was made.
Example—par (a)
The ombudsman receives an application for ombudsman review and makes attempts over a period of 20 working days to assist the parties to resolve the matter by an informal process under section 80A, but without success. The ombudsman must make a decision within 30 working days after the end of the 20 working days devoted to the attempts under section 80A.
New section 82 (3) (c) to (e)
insert
(c)the respondent makes a decision on the access application or otherwise resolves the application; or
(d)the ombudsman is satisfied that the review application is frivolous or vexatious or involves an abuse of process; or
(e)the ombudsman has been unable to contact the applicant for review despite making reasonable efforts.
NoteIf, under par (a) or (e), the ombudsman has decided not to review a decision and the applicant wishes to make a new application for ombudsman review, the longer period necessary for making the new application may be allowed by the ombudsman under s 74 (1).
Review of decisions by ACAT
Section 84 (1)omit
section 82 (1)
substitute
section 82 (1A)
Section 106
substitute
Fee estimate
(1)The respondent to an access application may give the applicant a written estimate of the fee (if any) likely to be payable for information provided in response to the application (the fee estimate).
(2)If the fee estimate is that a fee is payable, the respondent must ask the applicant to confirm or vary the access application.
(3)The respondent may suspend an access application if—
(a)the respondent has taken all reasonable steps to contact the applicant about the fee estimate; and
(b)either—
(i)the respondent is unable to contact the applicant; or
(ii)the applicant does not confirm or vary the application.
(4)If the access application is suspended, the respondent must, in writing, tell the applicant—
(a)that the application has been suspended; and
(b)about the effect of subsection (5).
(5)The respondent—
(a)must decide the application if the applicant confirms or varies the application within 3 months after the request was made; but
(b)need not deal further with the application if it is suspended under subsection (3) for 3 months or longer.
(6)Subsection (5) (b) does not prevent the applicant from making another access application for the same information.
Dictionary, note 2
insert
· working day
Dictionary, new definition of clarification request
insert
clarification request—see section 34 (3).
Endnotes
Presentation speech
Presentation speech made in the Legislative Assembly on 1 August 2019.
Notification
Notified under the Legislation Act on 10 October 2019.
Republications of amended laws
For the latest republication of amended laws, see certify that the above is a true copy of the Freedom of Information Amendment Bill 2019, which was passed by the Legislative Assembly on 26 September 2019.
Clerk of the Legislative Assembly
© Australian Capital Territory 2019
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