FREEDOM OF INFORMATION AMENDMENT (OPEN GOVERNMENT) BILL 2000 [2002] Explanatory Memorandum

1998-1999-2000

The Parliament of the Commonwealth of Australia

The Senate

Freedom of Information Amendment (Open Government) Bill 2000

Explanatory Memorandum

Circulated by authority of Senator Murray
General Outline

The Freedom of Information Act has been operating since 1982. In 1995, the Australian Law Reform Commission and the Administrative Review Council presented a report to the government of the day, entitled Open Government: a review of the Federal Freedom of Information Act 1982.

This bill implements many of the recommendations contained in that report in the absence of any action by government to amend the Act.

The financial implications of the measures contained in this bill have not been quantified.
This explanatory memorandum takes the form of a table which identifies the recommendation number, the subject of the recommendation, the relevant section of the Act, and the item or items in the bill which give effect to the recommendation.

Recommendation No.	Subject	Section	Amendment(s)
1	Amend objects clause to provide right of access to increase accountability	3	Item 1
2	Delete paragraph 3(1)(a)	3	Item 1
3	Delete reference in objects clause to limitations on general right of access	3	Item 1
4	Objects clause to acknowledge that government information is a national resource	3	Item 1
5	Object clause to distinguish between right of access to personal information and general right of access	3	Item 1
6	The fact that a document contains personal information of the applicant to be taken into account in access decisions	11A 41(3)	Item 8 Item 43
10	Extension of indemnity to authorised officer who releases a document other than under the FOI Act if it would not have been an exempt document	91(1AA)	Item 96
11	Extension of indemnity to an authorised officer for bona fide exercise of discretion not to claim exemption	91(D)	Item 97
14	Act to apply to documents that are less than 30 years old	12(2)	Item 9
16	FOI Commissioner to consult Privacy Commissioner before issuing guidelines on access to and amendment of applicant’s personal information	66K	Item 95
18	Create statutory office of FOI Commissioner	Part VIA	Items 3, 95
19	Functions of FOI Commissioner	66J-66N	Item 95
20	FOI Commissioner to have powers to require agencies to provide statistics on their FOI administration	66Q, 66R	Item 95
21	Agency to supply applicant with copy of relevant guidelines where exemption claimed	66L	Item 95
22	Agencies and AAT to take guidelines into account	66L	Item 95
23	Agencies to make information about how to use the FOI Act available in plain English	9A	Item 7
24	FOI Commissioner to encourage agencies to make use of information technology to enhance access	66M	Item 95
25	FOI Commissioner to monitor agency practices and pricing policies in relation to sale of documents	66R	Item 95
26	Standing arrangements for consultation between FOI Commissioner and Director-General of Archives, Chief Executive Officer of Office of Government Online, Ombudsman and Privacy Commissioner	66J	Item 95
27	Review of role of FOI Commissioner	66T	Item 95
28	Amend definition of document to include data	4	Item 4
30	FOI Commissioner to oversee compliance by agencies with sections 8 and 9	66J, 66R	Item 95
31	Time limit for processing FOI requests to be reduced to 14 days	15 30A 31 51D 56	Items 11, 12, 13 Items 23, 24 Item 26 Item 53 Items 62, 63 subclause 2(2)
32	Redraft section 24 to emphasise importance of agencies consulting with applicants about requests	24	Item 14
33	Repeal subsection 24(5)	24	Item 14
34	Remit application fee if a request refused under section 24 is not challenged	24(7)	Item 14
35	Agencies may refuse to process repeat requests where applicant already refused access, if no reasonable grounds exist for making repeat request	24AA	Item 15
36	FOI Commissioner to monitor quality of agencies’ statements of reasons and to name poor performances in annual report	66R	Item 95
37	FOI Commission to issue guidelines on application of public interest test	66K	Item 95
38	Government embarrassment to be irrelevant to access decision	4	Item 6
39	Section 26 to be amended to require agency to specify factors taken into account in applying public interest test	26	Item 17
40A	Regulations to prescribe 2 years as maximum duration of conclusive certificates	36A	Item 38
41	FOI Commissioner to monitor use of conclusive certificates and include information in annual report	66R	Item 95
42	“Neither confirm nor deny” response not to be available in respect of documents for which exemption might be claimed under section 33A	25	Item 16
43	FOI Commissioner to educate agencies about correct use of section 25	66K	Item 95
44	Exemption in section 33 for information communicated in confidence by an international organisation to be subject to a public interest test	33	Item 27
45	Section 33A to be amended to remove provision for conclusive certificate	33A and cross references	Items 28, 54, 55, 66, 67, 69, 71, 72, 73, 74, 75, 78, 80, 81, 89
46	Paragraph 34(1)(a) to apply only to documents created for submission to Cabinet for consideration	34	Item 29
47	Paragraph 34(1)(d) not to apply to a document disclosing a Cabinet decision if decision has been officially published	34	Item 30
48	“Officially published” to be defined	34	Item 32
49	Cabinet documents to be exempt for only 20 years after creation	34	Item 31
50	Repeal section 35	35 and cross references	Items 33, 54, 55, 66, 67, 72, 73, 74, 76, 78
51	Section 36 to be retitled	36	Item 34
52	Section 36 to be amended to exclude purely statistical information	36	Item 35
53A	Provision for a conclusive certificate not to be available under section 36	36 and cross references	Items 34, 36, 37, 66, 68, 70, 72, 74, 75, 77, 79, 82, 83, 84, 88, 90, 92
54	Amend section 37 to protect the security of places of lawful detention	37	Item 39
55	Section 37 to be amended to provide that specified documents are not exempt if their disclosure would be in the public interest	37	Item 40
56	Section 40 to be amended to protect internal or administrative investigations	40	Item 42
57	Repeal paragraph 40(1)(e)	40	Item 42
58	Repeal section 44	44	Item 47
59	Redraft section 41 to establish a link with Information Privacy Principles	41	Item 43
60	FOI Commissioner to consult Privacy Commissioner about guidelines on the interpretation and application of section 41	66K	Item 95
61	Section 41 to provide for regard to be had to any special relationship between the applicant and the third party	41	Item 43
62	Content of guidelines on consultation	66K	Item 95
63	Disclosures under section 41 to be made so as to minimise any risk to the applicant	41	Items 43, 57
64	Repeal subsection 41(4)	41	Item 43
66	Redefine the scope of section 42 (legal professional privilege)	42	Item 44
67	Section 42 not to apply if client has waived legal professional privilege	42	Item 44
68	Section 43 to apply to competitive commercial activities of agencies	43	Item 45
69	Section 47A to be repealed	47A	Item 49
70	Section 38 to be repealed	38	Items 41, 125
71	Section 43A to be repealed	43A	Items 46, 126
72	Section 47 to be repealed	47	Item 48
73	Parliamentary Departments to be subject to the FOI Act	4 13	Items 2, 5 Item 10
74	Intelligence agencies to remain in Part I of Schedule 2; other agencies to demonstrate to the Attorney-General the need for continuing exclusion or to be automatically removed after 12 months	Part 1 of Schedule 2	Subclause 2(4) Items 102, 103, 104, 105
75	Competitive commercial activities of agencies to be removed from Part II of Schedule 2; other agencies to demonstrate to the Attorney-General the need for continuing exemption or to be automatically removed after 12 months	Part II of Schedule 2	Subclause 2(5) Items 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122
76	Repeal Part III of Schedule 2	Part III of Schedule 2	Item 123
77	Remove words from section 48	48	Item 50
79	Irrelevance to be included as a ground for amendment or annotation of personal information	48	Item 51
80	Criterion of reasonableness to be included in section 50 in relation to amendment of records	50	Item 52
81	FOI Commissioner to issue guidelines about amendment of records by deletion	66K	Item 95
83	Internal review not to be a prerequisite for AAT review	55	Item 58
85	AAT may require production to it of exempt documents at any time after agency must have complied with section 37 of AAT Act	64	Items 85, 86
86	AAT not to disclose documents claimed to be exempt	64	Item 91
87	Access to an applicant’s personal information to be free of charge	94	Item 99
88	Charges to be imposed only in respect of released documents and in accordance with a scale of fees set out by the FOI Commissioner	94 and consequential amendments	Items 18, 19, 56, 59, 60, 61, 98, 101
90	FOI Commissioner to set photocopying and transcribing charges	94	Item 98
91	Fees not to apply to supervision of inspection of documents	94 Regulations	Items 100, 126
92	Abolish fee for internal review	30A Regulations	Items 21, 126
93	Agencies to have a general discretion to remit fees	30A	Item 22
94	Agencies to have a general discretion to waive or reduce charges	29	Item 20
95	FOI Commissioner to publicise section 66	66N	Item 95
96	AAT to have power to recommend applicants’ costs be paid by the Commonwealth in certain circumstances	66	Items 93, 94
102	Arrangements in respect of contracting out	66R	Item 95

Topic	Section	Amendment
The AAT to have a discretion to grant access to a document containing exempt material under section 43 if, after consulting the Auditor-General, the AAT believes it is in the public interest to do so	58	Items 64, 65

Commonwealth of Australia Explanatory Memoranda

FREEDOM OF INFORMATION AMENDMENT (OPEN GOVERNMENT) BILL 2000 [2002]