Nature of the Information
Documents or parts of documents can only be withheld if they are exempt under the FOI Act. Exempt documents are:
- documents affecting national security, defence, international relations
- Cabinet documents
- documents affecting the enforcement of the law and public safety
- documents to which specified secrecy laws apply
- documents subject to legal professional privilege
- documents affecting the national economy
- documents containing material obtained in confidence
- documents, disclosure of which would be contempt of court or Parliament
- documents disclosing trade secrets or commercially valuable information
- electoral rolls and related documents
Exempt documents are usually essential to protect the system of government, or the legitimate interests of third persons who deal with government. The interests of government include national security, the administration of justice, and the ability of Ministers to make decisions. Exemptions are intended to provide a balance between the rights of the public to obtain access to government held documents, the interests of third parties, and the functioning of government. The rationale for the exemptions is that disclosure of the particular information would:
- cause damage to business interests. Commonwealth-State relations or law enforcement;
- breach personal privacy, confidentiality, or secrecy; or
- have an adverse effect on operations of agencies or their decision making processes.
Public Interest Test
In determining whether disclosure would be contrary to public interest, the Commonwealth Act sets out two stages. The first stage is looking at whether the document is already conditionally exempt. Under s11A(5) conditionally exempt documents must be disclosed unless the disclosure is contrary to public interest. So, first it must be determined if the document falls into this category.
The public interest test is set out at section 11B. Factors favourable to disclosure to be taken into account after this point include whether access to the document would promote the objects of the FOI Act, inform debate on a matter of public importance, promote effective oversight of public expenditure, or allow a person to access his or her own personal information (s11B(3)). As with the Tasmanian Act, there is a list of irrelevant factors, though not so extensive (s11B(4)). These include whether disclosure would result in embarrassment to the Commonwealth government, or a loss of confidence in the government, the disclosure could result in a misinterpretation or misunderstanding of the document; the author has high seniority in the agency to which the request was made; or the document could result in confusion or unnecessary debate. Some of these factors are obviously highly subjective. Who decides what is ‘unnecessary debate’ or whether there would be ‘misunderstanding of the document’?
There are guidelines that agencies and Ministers must have regard to in making a decision on public interest, which are published by the Office of the Information Commissioner. There is a general pamphlet for the public available on public interest. The guidelines are also available.
Matters to be taken into account include informing the community, assisting in addressing deficiencies in government, promote effective oversight of public expenditure, and many of the other factors explicitly stated in the Tasmanian Act.
The FOI Act also provides a series of documents that are automatically considered to be conditionally exempt. These are documents that bear on:
- Commonwealth-state relations;
- Deliberative processes of government;
- Financial or property interests of the Commonwealth or Norfolk Island;
- Certain operations of agencies (for example, security agencies);
- Personal privacy;
- Research; and
- The economy.
Exemptions are to be claimed only where the relevant information is genuinely sensitive and real harm will be caused by their disclosure. They are not to be claimed simply because they are technically available. See Part IV of the FOI Act. An agency is not bound to refuse disclosure of a document which falls within an exempt category; that is, the exemptions are “permissive”, and a document can be disclosed whether it is exempt or not under the FOI Act. More than one exemption may be claimed.
Information not Available Under FOI
The FOI Act does not apply to information contained in a record which may be inspected by the public in accordance with another Act; or information which may be purchased from an agency or which is available through the Archives Office.
Age of the Information
A person is entitled to information of any age held by an agency if it relates to that person’s personal affairs. Otherwise a person is entitled only to information which is incorporated in a record of an agency on or after 1 December 1977 for Commonwealth documents.
Personal information about an individual is usually accessible to that individual only. Information is exempt if its release to an applicant would involve the unreasonable disclosure of a third party’s personal affairs. People who find information in their personal records which is incorrect, misleading, incomplete or out of date also have the right to seek to have the records amended. Regardless of when a file was created, an individual can access their personal documents. If a third party requests access to another person’s personal information, the body of whom the information is requested must consult with the individual whose information has been requested.