Disclosure Log Determination No. 2011-1 (Exempt Documents)

Administered by Attorney-General's Department

Legislation au F2011L02059 Not in force Legislative Instrument

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Explanatory Statement

 

Freedom of Information Act 1982
Disclosure Log Determination No. 2011-1
(Exempt Documents)

September 2011

 

 

 

 

Explanatory Statement

Freedom of Information Act 1982
Disclosure Log Determination No. 2011-1

(Exempt Documents)

This explanatory statement has been prepared by the Australian Information Commissioner. It explains the scope and intended operation of Disclosure Log Determination No. 2011-1 made under s 11C(2) of the Freedom of Information Act 1982 (Cth) (the Act).

Purpose

Section 11C(3) of the Act requires agencies and Ministers to publish information that has been released in response to each freedom of information access request on their websites subject to certain exceptions. This publication is known as a ‘disclosure log’.

The disclosure log requirement does not apply to any of the following:

a)             personal information about any person, if it would be ‘unreasonable’ to publish the information (s 11C(1)(a))

b)             information about the business, commercial, financial or professional affairs of any person, if publication of that information would be ‘unreasonable’ (s 11C(1)(b))

c)              other information of a kind determined by the Information Commissioner if publication of that information would be ‘unreasonable’ (s 11C(1)(c))

d)             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)).

The purpose of Determination No. 2011-1 is for the Commissioner to prescribe for the purposes of s 11C(1)(c), information referred to in paragraph (a) or (b) to which an agency or Minister has given access to an applicant under s 11A of the Act:

a)             information in a document that was an exempt document at the time that access was given by the agency or Minister to the applicant

b)             information in a document that the agency or Minister would have decided was an exempt document at the time that access was given to the applicant, if the request for that document had been received from a person other than the applicant.

Reasons for making the determination

The Act gives every person a legally enforceable right to obtain access to documents of an agency and official documents of a Minister other than exempt documents (s 11). The phrase ‘exempt document’ is defined in ss 4 and 31B as meaning:

  • a document that is exempt under Part IV Division 2
  • a document that is conditionally exempt under Part IV Division 3, if access to the document at that time would, on balance, be contrary to the public interest
  • a document in respect of which an agency, person or body is exempt from the operation of the Act under s 7, and
  • an official document of a Minister that contains some matter that does not relate to the affairs of an agency or Department of State.

The Act does not limit an agency’s or Minister’s power to give access to information or a document that is exempt under the Act (s 3A).

Paragraph 1(a) of Determination No. 2011-1 relieves an agency or Minister of any obligation to publish in a disclosure log an exempt document that has been released to an applicant, where publication would be unreasonable. The effect of paragraph 1(a) is that an agency or Minister may decide that it is appropriate to provide access to the particular applicant but it would be unreasonable to publish the document more widely. For example, an agency may have released an exempt document to a particular applicant in connection with a research project, in connection with legal proceedings in which the applicant is involved, or because the confidential nature or commercial value of information in a document would not be jeopardised by selective release. In these circumstances, under paragraph 1(a) of Determination No. 2011-1, the agency may decide that it is unreasonable to publish this information more widely in a disclosure log.

Paragraph 1(b) of Determination No. 2011-1 recognises that the exempt status of a document can depend on the identity of the applicant. That is, a document may not be an exempt document when it is released to a particular applicant, but would be an exempt document if another person sought access to it. For example, it would not be an unreasonable disclosure of personal information or contrary to the public interest to release to a person a document that relates specifically and only to them (s 47F). However, it may be an unreasonable disclosure or contrary to the public interest to release that document to another person, including by publishing that document in a disclosure log that is available to the general public. The identity of the applicant is similarly relevant in applying the conditional exemption for business affairs (s 47G).

Operation

This determination will remain in force for a period of 2 years from the date of commencement.

The disclosure log provisions in the Act, including the determination mechanism in s 11C(2) came into effect on 1 May 2011. At the time of making this determination these provisions include requirements and procedures that are new and have not been tested. The operation and effect of this determination will require review in 2 years.

Definitions

In this determination:

a)             agency, applicant and exempt document have the same meaning as in section 4 of the Act, and

b)             disclosure log means the publication under s 11C of information that has been released to an applicant under the Act.

Consultation

In March 2011, the Information Commissioner published a discussion paper on the new disclosure log provisions in the Act for public comment.  The discussion paper, among other things, invited comments about classes of information which should be exempted from the operation of s 11C by a determination made by the Information Commissioner.

The discussion paper was available on the Office of the Australian Information Commissioner’s (OAIC) website over a three week consultation period. It was also published for comment on the govspace blog[1] and on govdex.[2] The OAIC also contacted relevant stakeholders by email to inform them that the discussion paper was available for comment.

The OAIC received nineteen written submissions in response to the discussion paper. The submissions are available on the OAIC website.[3] A number of these submissions made suggestions about classes of information which should be exempted from the operation of s 11C by a determination made by the Information Commissioner. Following consideration of these suggestions, the Information Commissioner prepared Determination No. 2011-1.

In July 2011, the Information Commissioner published draft Determination No. 2011-1 and explanatory statement for public comment. These documents were available on the OAIC’s website over a three week consultation period. The OAIC used govdex to publicise this consultation. The OAIC also contacted relevant stakeholders by email to inform them about the consultation.

The OAIC received two written submissions in response to this consultation. The submissions are available on the OAIC website.[4] The Information Commissioner took these submissions into account in preparing Determination No. 2011-1 and the explanatory statement.

[1]  http://govspace.gov.au/.

[2]  http://www.govdex.gov.au.

[3]  http://www.oaic.gov.au/news/consultations.html#foi_disclosure_log.

[4]  http://www.oaic.gov.au/news/consultations.html#foi_disclosure_log.

Overview

The Freedom of Information Act 1982, enacted by the Australian Parliament, was introduced to provide a legally enforceable right for every person to obtain access to documents held by agencies and Ministers, while excluding certain exempt documents. The Act ensures transparency and accountability in government operations. The Freedom of Information Act 1982 Disclosure Log Determination No. 2011-1 (Exempt Documents) was made by the Australian Information Commissioner under section 11C(2) of the Act. This determination aims to address the need to exempt certain documents from the disclosure log requirement, which mandates the publication of information released in response to freedom of information requests on agency and ministerial websites. The objective is to prevent the unreasonable publication of information that could be personal, commercial, or otherwise sensitive, thereby balancing the public's right to access information with the need to protect certain interests.

Scope and Application

The Freedom of Information Act 1982 Disclosure Log Determination No. 2011-1 applies to agencies and Ministers under the Commonwealth jurisdiction, and pertains to the exemptions outlined in the Act regarding the publication of information in a disclosure log. Specifically, this determination provides exceptions to the mandatory publication of information that has been released in response to freedom of information access requests, aiming to balance transparency with the protection of sensitive information. The exemptions apply to personal information about any person, business, commercial, financial or professional affairs of any person, and any other information deemed unreasonable for public disclosure. Additionally, it excludes information that cannot be reasonably redacted for publication due to the extensive modifications required. This determination, made under section 11C(2) of the Act, remains in force for two years and will be subject to review. The Information Commissioner consulted extensively with stakeholders through the publication of a discussion paper and draft determination, receiving submissions that influenced the final determination.

Key Provisions

The Freedom of Information Act 1982 Disclosure Log Determination No. 2011-1 outlines specific provisions for exempt documents, detailing when and how certain information can be withheld from the disclosure logs under section 11C of the Act. Under section 11C(3), agencies and Ministers are required to publish details of documents released in response to freedom of information requests on their websites, except where certain conditions are met. Specifically, section 11C(1) exempts personal information, business, commercial, financial, or professional affairs information, and other information deemed unreasonable for publication. Section 11C(1)(c) empowers the Information Commissioner to determine additional classes of information that should be exempt, which is the focus of this determination. The Act imposes several obligations on agencies and Ministers, primarily around the publication of access request outcomes. Agencies and Ministers must adhere to the exemptions outlined in the Act and the determination, ensuring that sensitive information is not disclosed publicly. For instance, agencies may provide access to an exempt document to a particular applicant under section 11A of the Act if deemed appropriate but may choose not to publish this in a disclosure log if it would be unreasonable (section 11C(1)(a)). Similarly, if the exempt status of a document depends on the applicant's identity, agencies must assess whether publication in a disclosure log would be unreasonable (section 11C(1)(b)). In terms of consequences, the Act does not explicitly outline penalties for non-compliance with the disclosure log requirements. However, non-compliance with the broader provisions of the Act could lead to legal action. For instance, if an agency or Minister fails to comply with the Act’s requirements to provide access to documents, this could result in judicial review or other legal remedies. The primary focus of the determination is to ensure that sensitive information is appropriately protected and not unnecessarily disclosed, thereby upholding the balance between transparency and the protection of legitimate privacy and public interest concerns.

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Information Law
Instrument
Regulation
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Definitions & Interpretation
Enforcement Powers
Exemptions & Exclusions
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Exempt Documents
Unreasonable Publication

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