Freedom of Information Amendment Act 2023 (ACT)

Case

Freedom of Information Amendment Act 2023

A2023-16

Contents

Page

1            Name of Act  2

2            Commencement  2

3            Legislation amended  2

4            Section 16  2

5            Public interest testNew section 17 (3)  3

6            Open access information—deletion of contrary to the public interest informationNew section 26 (3) and (4)  3

7           Requirement for disclosure logSection 28 (1)  3

8            Deciding access—identifying information within scope of applicationSection 34 (6)  4

9            Deciding access—relevant third partiesSection 38 (5) (b)  4

10          Deciding access—decision not made in time taken to be refusal to give accessSection 39 (4)  4

11          Section 39 (5)  4

12          Deciding access—time to decideSection 40 (1)  5

13          New section 40 (2) (ba)  5

14          Section 40 (2), example  5

15          Deciding access—respondent may ask for additional time to decideSection 41 (3) and (4) and example  6

16          Deciding access—extension of time given by ombudsmanSection 42 (1) (a) and (b)  7

17          Section 42 (3), new example  7

18          Refusing to deal with application—generalSection 43 (1) (b), new example  8

19          Refusing to deal with application—information already available to applicantSection 45 (a)  8

20          Giving access—form of accessSection 47 (5)  8

21          Applications for ombudsman reviewNew section 74 (1) (a) (iiia)  8

22          Ombudsman reviewNew section 82 (3) (aa)  9

23          New section 82 (8)  9

24          Information disclosure of which is taken to be contrary to the public interestSchedule 1  9

25          New schedule 1, section 1.15  9

26          Reviewable decisionsSchedule 3, new item 1A  10

27          Schedule 3, item 2  10

28          Dictionary, new definition of policy document  10

Freedom of Information Amendment Act 2023

A2023-16

An Act to amend the Freedom of Information Act 2016

The Legislative Assembly for the Australian Capital Territory enacts as follows:

  1. Name of Act

    This Act is the Freedom of Information Amendment Act 2023.

  2. Commencement

    This Act commences on the 7th day after its notification day.

    NoteThe naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

  3. Legislation amended

    This Act amends the Freedom of Information Act 2016.

  4. Section 16

    substitute

  5. Meaning of contrary to the public interest information

    (1)For this Act, information is contrary to the public interest information if—

    (a)it is taken to be contrary to the public interest to disclose under schedule 1; or

    (b)disclosing the information would, on balance, be contrary to the public interest under the test set out in section 17.

    (2)However, information mentioned in schedule 1 (other than information subject to legal professional privilege under section 1.2) is not taken to be contrary to the public interest information if it identifies—

    (a)corruption; or

    (b)the commission of an offence by a public official; or

    (c)that the scope of a law enforcement investigation has exceeded the limits imposed by law.

  6. Public interest test
    New section 17 (3)

    insert

    (3)Despite subsection (2) (f), the applicant’s identity, circumstances, and reason for seeking access to the information may be taken into account if—

    (a)the information requested is personal information; and

    (b)the personal information is not about the applicant.

  7. Open access information—deletion of contrary to the public interest information
    New section 26 (3) and (4)

    insert

    (3)However, subsection (2) does not apply to the agency if—

    (a)the record is a policy document of the agency; and

    (b)the information, other than the contrary to the public interest information, contained in the record has been otherwise made publicly available.

    (4)In this section:

    policy document—see section 23 (2).

  8. Requirement for disclosure log
    Section 28 (1)

    substitute

    (1)An agency and Minister must keep a record of access applications dealt with by the agency or Minister (a disclosure log).

  9. Deciding access—identifying information within scope of application
    Section 34 (6)

    omit

    3 months

    substitute

    6 weeks

  10. Deciding access—relevant third parties
    Section 38 (5) (b)

    omit

    15 working days

    substitute

    10 working days

  11. Deciding access—decision not made in time taken to be refusal to give access
    Section 39 (4)

    omit

    3 sitting days

    substitute

    6 sitting days

  12. Section 39 (5)

    substitute

    (5)Subsection (4) does not apply if—

    (a)the ombudsman extended the time for the respondent to decide the access application under section 78; or

    (b)the access application is only for personal information.

  13. Deciding access—time to decide
    Section 40 (1)

    substitute

    (1)A respondent to an access application must decide the application not later than 30 working days after the day of receiving the application.

  14. New section 40 (2) (ba)

    insert

    (ba)if the respondent gives notice to the applicant under section 46 (1) (a)—the consultation period under section 46 (4) for the application; or

  15. Section 40 (2), example

    substitute

    (e)if the period includes 1 or more Christmas shutdown days—the number of Christmas shutdown days.

    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 40 working days after 1 February, being the 30 working days allowed under section 40 (1) plus the 10 working days the applicant took to answer the clarification request.

    (3)In this section:

    Christmas shutdown day means a working day that falls on 27, 28, 29, 30 or 31 December in a year.

  16. Deciding access—respondent may ask for additional time to decide
    Section 41 (3) and (4) and example

    substitute

    (3)The respondent may decide the application before the end of the additional time requested if—

    (a)the total period for deciding the application would, if the request is agreed to, be not more than 12 months; and

    (b)the applicant agrees, or is taken to agree, to the request.

    (4)For subsection (3) (b), an applicant is taken to agree to a request if—

    (a)the applicant has not, within 7 working days after the request is made, refused the request; and

    (b)the respondent has not received notice that the applicant has applied for review under part 8.

    (5)The respondent may decide the application before the end of the additional time requested if—

    (a)the total period for deciding the application would, if the request is agreed to, be more than 12 months but not more than 24 months; and

    (b)both of the following apply:

    (i)the applicant agrees to the request;

    (ii)the respondent agrees to deal with the application progressively.

    Example—par (ii)

    the respondent provides information progressively

    (6)The respondent must not ask the applicant for additional time to decide an access application if the total period for deciding the application would, if the request is agreed to, be more than 24 months.

    (7)In this section:

    total period, to decide an access application, means the period—

    (a)beginning on the day the respondent receives the application; and

    (b)ending on the day the respondent decides the application.

  17. Deciding access—extension of time given by ombudsman
    Section 42 (1) (a) and (b)

    substitute

    (a)the respondent has asked the applicant for an additional stated amount of time under section 41 (1) and—

    (i)the applicant has refused the request under section 41 (3); or

    (ii)the applicant has not agreed to the request under section 41 (5); or

    (b)section 41 (6) prevents the respondent from asking the applicant for an additional amount of time to decide the application.

  18. Section 42 (3), new example

    after the example, insert

    Example—exceptional circumstances

    at a point in time, the volume or complexity of applications significantly exceeds the resources available to the respondent to deal with applications

  19. Refusing to deal with application—general
    Section 43 (1) (b), new example

    insert

    Example—vexatious application

    an application made only to annoy or unreasonably interfere with the respondent’s operations, or for an improper purpose

  20. Refusing to deal with application—information already available to applicant
    Section 45 (a)

    substitute

    (a)is publicly available; or

  21. Giving access—form of access
    Section 47 (5)

    substitute

    (5)However, access may be given in a form (an alternative form) other than that requested by the applicant if—

    (a)it is not reasonably practicable for the respondent to give access in the form requested; and

    (b)the respondent is reasonably satisfied that the applicant can receive the information given in the alternative form.

  22. Applications for ombudsman review
    New section 74 (1) (a) (iiia)

    insert

    (iiia)for a decision to make open access information available—the day the information was published; or

  23. Ombudsman review
    New section 82 (3) (aa)

    insert

    (aa)if the ombudsman has given a written notice to a person, under section 79 (1), in relation to the application—the time, or the end of the period, stated in the notice under section 79 (2) (b); or

  24. New section 82 (8)

    after the note, insert

    (8)The ombudsman may correct a mistake, error or omission in a decision, or the reasons for a decision, made under this section.

  25. Information disclosure of which is taken to be contrary to the public interest
    Schedule 1

    omit

    Information mentioned in this schedule is taken to be contrary to the public interest to disclose unless the information identifies corruption or the commission of an offence by a public official or that the scope of a law enforcement investigation has exceeded the limits imposed by law.

  26. New schedule 1, section 1.15

    insert

1.15Information in possession of Inspector of Correctional Services

Information in the possession of the inspector of correctional services appointed under the Inspector of Correctional Services Act 2017, section 9 that has been obtained or generated in relation to an examination or review conducted under that Act, section 18.

  1. Reviewable decisions
    Schedule 3, new item 1A

    before item 1, insert

1A 24 (1) make open access information publicly available person whose interests are affected

  1. Schedule 3, item 2

    substitute

2 35 (1) (a) give access to government information applicant, relevant third party

  1. Dictionary, new definition of policy document

    insert

    policy document—see section 23.

Endnotes

  1. Presentation speech

    Presentation speech made in the Legislative Assembly on 21 September 2022.

  2. Notification

    Notified under the Legislation Act on 17 May 2023.

  3. 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 2023, which originated in the Legislative Assembly as the Freedom of Information Amendment Bill 2022 and was passed by the Assembly on 10 May 2023.

    Clerk of the Legislative Assembly

    © Australian Capital Territory 2023

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