Australia: Reforming the Freedom of Information - FOI - Regime - the Key Changes

Last Updated: 14 September 2010
Article by Ashley Tsacalos


The Freedom of Information Amendment (Cth) (Reform) Act 2010 (FOI Reform Act) will introduce sweeping changes to the Commonwealth Freedom of Information (FOI) regime.

The changes represent a cultural shift towards pro-disclosure and public participation, which was most recently outlined by the Government 2.0 Taskforce in the 'Getting on with Government 2.0' report.

The three major pillars of the FOI Reform Act are the involvement of the Information Commissioner, new publication requirements and a dramatic narrowing of material exempt under the current regime. The publication requirements become effective on 1 May 2011. The remaining reforms commence on 1 November 2010.

Office of the Australian Information Commissioner

The Australian Information Commissioner Act 2010 (Cth) established the Office of the Australian Information Commissioner.

The Information Commissioner will have broad oversight over the operation of the FOI regime. Professor John McMillan, the current Commonwealth Ombudsman, has been appointed the Australian Information Commissioner designate.

The functions of the Information Commissioner will include:

  • issuing guidelines under the FOI Act (for instance on the "public interest" test)
  • providing training and assistance to agencies
  • conducting external merits review of FOI decisions
  • conducting complaints investigations
  • advising the government on FOI policy.

The functions are meant to encourage government disclosure and openness. Professor John McMillan has already described the Information Commissioner's role as "building a culture of open government through voluntary and proactive disclosure".

Requirement to publish

The current FOI regime requires agencies to publish information relating to the particulars of an agency, including their functions and decision making powers. The FOI Reform Act expands the publication requirements and now requires agencies to also publish:

  • information given under FOI requests (some exceptions apply)
  • information that is routinely provided to Parliament in response to requests and orders from the Parliament
  • the agency's "operational information" such as the guidelines, practices and precedents used to assist an agency to make a decision.

Exceptions for publication of FOI material include where documents involve personal, business, financial, commercial, or professional affairs of any person where it would be unreasonable to publish it (see section 11C for more details).

The FOI Reform Act requires agencies to publish the material online unless an agency publishes on its website how the information can otherwise be accessed. The FOI Reform Act also imposes a statutory obligation on agencies to ensure the accuracy and currency of published information.

Importantly, the FOI Reform Act puts some teeth into enforcement of these requirements by allowing the Information Commissioner to monitor and investigate compliance.

Narrowing of exempt material and introduction of conditionally exempt material

The FOI Act significantly reduces the categories of material which are exempt from FOI requests and introduces a new category of 'conditionally exempt' documents. Many items that were previously exempt are now conditionally exempt.

Agencies must grant access to conditionally exempt documents unless access would be contrary to the 'public interest'. In working out whether access to a document would be contrary to the public interest, an agency must have regard to guidelines issued by the Information Commissioner. The FOI Reform Act also provides guidance by saying that factors favouring the provision of access include:

  • promoting the objects of the Act
  • informing debate on a matter of public importance
  • promoting effective oversight of public expenditure
  • allowing a person to access his or her own personal information.

Factors which are irrelevant include where access would embarrass the government.

With the exception of conditionally exempt documents, the access requirements under the FOI Reform Act are similar to the current regime. The grounds for refusal include the following, namely:

  • the document is exempt
  • the document is conditionally exempt and access would be contrary to the public interest
  • there is a practical reason for refusing to grant access (e.g. too onerous on the agency's resources)
  • the documents cannot be found, do not exist or have not been received.

In deciding to grant access, agencies must also have regard to any guidelines issued by the Information Commissioner.

Summary of key changes

Agencies must publish information granted in response to an FOI request (subject to certain exceptions).

Current FOI position Post FOI reform
No requirements to publish information routinely given to Parliament. Agencies must publish information that is routinely provided to Parliament in response to requests and orders from the Parliament.
No requirements to publish information delivered in response to FOI requests.
An agency's guidelines, practices and precedents have to be available for inspection and purchase. An agency's guidelines, practices and precedents have to be published (which is part of the requirement to publish "operational information").

These documents are exempt:

  • affecting Commonwealth-State relations
  • affecting financial or property interests of the Commonwealth
  • concerning certain operations of agencies
  • affecting personal privacy
  • relating to business affairs
  • relating to research
  • affecting national economy
  • internal working documents

With the exception of 'internal working documents', these items are 'conditionally exempt'. The category for 'internal working documents' is not duplicated under the FOI Reform Act, although documents relating to 'deliberative processes' would cover overlapping material. Documents relating to 'deliberative processes' are conditionally exempt.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Ashley Tsacalos
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