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2013-2014-2015
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
FREEDOM OF INFORMATION AMENDMENT (REQUESTS AND REASONS) BILL
2015
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Joseph Ludwig)
FREEDOM OF INFORMATION AMENDMENT (REQUESTS AND
REASONS) BILL 2015
OUTLINE
This Bill amends the Freedom of Information Act 1982 (the FOI Act) to require government
agencies and Ministers to publish the exact wording of freedom of information requests. The
amendments will also require agencies and Ministers to publish a statement of reasons
concerning the decision to allow or refuse the release of requested documents.
The Bill will achieve the purposes of:
ensuring transparency and accountability are included within the framework of
government decisions concerning freedom of information requests;
allowing the public to view requests that have been made and the reasons why
documents were or were not released;
allowing applicants seeking similar documents to build upon previous requests; and
reducing duplication of requests.
Publishing the reasons for decisions will allow for scrutiny of departmental decisions and
open the door to further reform to allow review of requests by parties other than the initial
applicant.
NOTES ON CLAUSES
Clause 1: Short Title
1. Clause 1 is a formal provision specifying the short title of the Bill.
Clause 2: Commencement
2. Clauses 1 to 3 of the Bill will commence on the day it receives Royal Assent.
Schedule 1 of the Bill will commence on the day after the end of the period of 3 months
beginning on the day it receives Royal Assent.
Clause 3: Schedules
3. Clause 3 is an activating clause providing that each Act specified in a Schedule to
the Bill is amended or repealed as is set out in the applicable items in the Schedule. Any other
item in a Schedule to the Bill has effect according to its terms.
Schedule 1--Amendments
Freedom of Information Act 1982
Item 1: Subsection 4(1)
4. This item inserts a new definition of "working day" in the interpretation section of
the Act, which applies in relation to a requirement in a provision of the FOI Act to publish
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information, to mean a day that is not a Saturday, a Sunday, or a public holiday in the place
where the function of publishing the information under the provision is to be performed.
Items 2 and 3: Paragraphs 11C(3)(b) and (c)
5. Where access to a document has been granted, these items repeal the option that an
agency or Minister may publish on a website mere details of how the information may be
obtained. The information must be available for downloading from the website or there must
be a link on the website to another website, from which the information can be downloaded.
"Information" refers to the content of any document a person has been given access to under
section 11A.
Item 4: Subsection 11C(7)
6. This item removes the old definition of "working day" from subsection 11C(7)
following the insertion of the definition in the interpretation section by item 1.
Item 5: Section 11D
7. This item inserts new section 11D.
8. If a person is given access to a whole document, subsection 11D(2) requires an
agency or Minister to publish the request and the reasons for the decision before the end of 10
working days after the day the person is given access.
9. If a person is given access to an edited copy of a document in accordance with section
22 of the FOI Act, paragraph 11D(3)(a) requires the agency or Minister to publish the request
and the notice under subsection 22(3) within 10 working days after the decision is made.
Subsection 22(3) requires the agency or Minister to give the applicant notice in writing that
an edited copy of the document has been prepared, the grounds for the deletions, and whether
any matter has been deleted because it would cause the document to be exempt under the Act.
If a person makes a request under subsection 22(4) for a notice to be published in accordance
with section 26, new paragraph 11D(3)(b) requires the agency or Minister to publish the
notice within 10 working days after the notice is given.
10. If a person is not given access to a document at all, paragraph 11D(4)(a) requires the
agency or Minister to publish the request within 10 working days after the day the decision is
made. Paragraph 11D(4)(b) also requires the agency or Minister to publish the notice given in
accordance with section 26 within 10 working days after the notice is given. A notice given
in accordance with section 26 must, among other things, state findings on material questions
of fact and the reasons for the decision, state the name and designation of the person giving
the decision, and inform the applicant of their rights to review and complaint.
11. Subsection 11D(5) requires the agency or Minister to publish the requests, reasons or
notice on a website, without charge, by making them available for download, or by
publishing on the website a link to another website where it is available for download.
12. Subsection 11D(6) requires that certain information be removed from requests,
reasons or notices before they are published. This includes information that would, at the time
the request, reasons or notice is to be published, cause the request, reasons or notice to be an
exempt document under Part IV of the FOI Act. Further, in order to protect the privacy of
individuals, this item requires that certain information be removed including personal
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information and information about the business, commercial, financial or professional affairs
of a person, if it would be unreasonable to publish the information. Paragraph 11D(6)(e)
requires the removal of information that the Information Commissioner has determined
should be exempted from publication, in accordance with subsection 11C(2) of the FOI Act.
Item 6: Application
13. This item specifies that amendments made by the Bill apply in relation to requests
referred to in paragraph 11A(1)(a) of the FOI Act that are made on or after the day the Bill
commences.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Freedom of Information Amendment (Requests and Reasons) Bill 2015
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
This Bill amends the Freedom of Information Act 1982 (the FOI Act) to require government
agencies and Ministers to publish the exact wording of freedom of information requests. The
amendment will also require agencies and Ministers to publish a statement of reasons
concerning the decision to allow or refuse the release of requested documents.
Human rights implications
This Bill engages the right to protection against unlawful interference with privacy contained
in Article 17 of the International Covenant on Civil and Political Rights (the ICCPR).
Article 17 of the ICCPR provides that:
No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or
correspondence, nor to unlawful attacks on his honour and reputation, and that everyone has the right
to protection of the law against such interference or attacks.
The Bill protects against the possible limitations on the right to privacy that may otherwise
flow from the requirements in the Bill to publish freedom of information requests and reasons
for a decision. Subsection 11D(6) of the Bill requires that certain information be removed
before a request and reasons are published, including information that would, at the time the
request, reasons or notice is to be published, cause the request, reasons or notice to be an
exempt document under Part IV of the FOI Act. Part IV, section 47F, of the FOI Act contains
a public interest conditional exemption with regard to personal privacy which includes
matters to which an agency or Minister must have regard to in determining whether the
disclosure of a document would involve the unreasonable disclosure of personal information.
Further, in order to protect the privacy of individuals, the Bill requires that personal
information and information about the business, commercial, financial or professional affairs
of a person be removed if it would be unreasonable to publish the information. Under the
current subsection 11C(2) of the FOI Act the Information Commissioner has discretion to
determine that certain information should not be published if it would be unreasonable to
publish the information. Paragraph 11D(6)(e) of the Bill requires that this information also be
removed.
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Conclusion
The Bill is compatible with human rights because, to the extent it engages with the right
against arbitrary interference with privacy, it contains sufficient protections against limiting
this right while also promoting government accountability and transparency.
Senator Joseph Ludwig
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