Some of the provisions of the federal Australian Information Commissioner Act 2010 and the federal Freedom of Information (Reform) Act 2010 ("Information Acts"), passed earlier this year, are about to come into effect. This article summarises some of the main changes.
1. Office of the Australian Information Commissioner
One of the key reforms is the establishment a new Office of the Australian Information Commissioner from 1 November 2010. The Information Commissioner will oversee the freedom of information ("FOI") regime and will:
- issue guidelines, for instance on the "public interest" test;
- provide training and assistance to agencies;
- review FOI decisions;
- investigate complaints; and
- provide policy advice.
The Information Commissioner will also be supported by two statutory officers - the Privacy Commissioner and the FOI Commissioner.
2. New contractual requirement
There is a new requirement for agencies to take contractual measures to make sure they can access documents which are requested under the Freedom of Information Act 1982 ("FOI Act") but are held, or were created, by a contractor or subcontractor.
Although this obligation comes into effect from 1 November 2010, it only applies to contracts where the services are provided by a contractor or subcontractor on behalf of the agency. The new requirement does not apply:
- to contract negotiations;
- to contracts for services provided to the agency itself, such as IT services;
- to contracts for goods or financial assistance;
- where the contract was signed before 1 November 2010, even if the services are still being provided at that date, or where the contractor or subcontractor won't begin to provide the services until after 1 November 2010.
The Office of the Australian Information Commissioner Designate has issued the following model clause for inclusion in relevant contracts:
1. Access to documents
1.1 In this clause, 'document' and 'Commonwealth contract' have the same meaning as in the Freedom of Information Act 1982 (Cth).
1.2 The Contractor acknowledges that this contract is a Commonwealth contract.
1.3 Where the Agency has received a request for access to a document created by, or in the possession of, the Contractor or any subcontractor that relates to the performance of this contract (and not to the entry into the contract), the Agency may at any time by written notice require the Contractor to provide the document to the Agency and the Contractor must, at no additional cost to the Agency, promptly comply with the notice.
1.4 The Contractor must include in any subcontract relating to the performance of this contract provisions that will enable the Contractor to comply with its obligations under this clause.
3. New public interest test - conditionally exempt documents
Two of the principal objects of the Information Acts are promoting a pro-disclosure culture across the Federal government, and building a stronger foundation for more openness in government.
Accordingly, effective from 1 November 2010, some of the existing categories to exempt documents from disclosure will be repealed, while others will be reformulated. Of significant importance is that there will now be a presumption that all information held by the Federal government should be accessible to the public and should only be withheld if it is necessary to do so in the public interest Accordingly, a new category of 'conditionally exempt documents' has been created. As a general rule, an agency must give access to a conditionally exempt document unless disclosure would be contrary to the public interest.1
Conditionally exempt documents include documents containing:
- business information or trade secrets, the disclosure of which, among other things, would unreasonably and adversely affect a person's business or professional affairs;
- personal information (including a person who has died) where the person (or deceased person's representative) would consider its disclosure to be unreasonable;
- a deliberative process (such as an opinion, advice or recommendation) of an agency or a Commonwealth Minister;
- information that would have a substantial adverse effect on the financial or property interests of the Commonwealth or an agency;
- certain research information, or research information whose disclosure would disadvantage the relevant officer or agency;
- information that would have a substantial adverse effect on Australia's economy; and
- information that would damage Commonwealth-State relations or divulge confidential information between the Commonwealth and the State2
Although there are several factors to be assessed when deciding to release conditionally exempt documents (including compliance with Information Commissioner guidelines, informing debate on a matter of public importance, effective oversight of public expenditure or allowing a person to access his or her own personal information3), an agency must not consider any of the following in determining whether to provide access to a conditionally exempt document:
- embarrassment to, or loss of confidence in, the Commonwealth Government;
- potential misinterpretation or misunderstanding of the document;
- the seniority of the author of the document; or
- the potential of confusion or unnecessary debate4
4. A reduction in the costs for applications.
Also from 1 November 2010, the application fee (currently $30) and the internal review fee (currently $40) will be removed. In addition:
- no charges will apply to applicants seeking access to their own personal information;
- the first hour of decision-making time will be free (except for journalists and not-for-profit community groups where it will be the first five hours); and
- any request not decided within the statutory time frame will be processed free of charge.
5. Longer term reforms - publication of information and release of archived documents
Two other reforms to take place from 1 May 2011 include a proactive publication requirement for government agencies called the Information Publication Scheme, and a reduction in the time that government records are released under the Archives Act 1983 from 30 years to 20 years.
The FOI reforms under the Information Acts reflect legislation that has already been passed in some States and Territories (see for example the NSW Government Information (Public Access) Act 2009). While some of the reforms in the Information Acts appear to be quite extensive, it is likely that the most broad-reaching reform is the gathering together of the new Information Commissioner, the Privacy Commissioner and the FOI Commissioner, as this is likely to result in the consistent development and management of Australia's public and private information.
1 Section 11A(5) of the Freedom of Information (Reform) Act 2010
2 See sections 27, 27A and 47B-47J of the Freedom of Information (Reform) Act 2010
3 Sections 11B(3) and (5) of the Freedom of Information (Reform) Act 2010
4 Section 11B(4) of the Freedom of Information (Reform) Act 2010
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.