Commonwealth: Freedom of Information Amendment (Reform) Act 2010 (Cth)

Freedom of Information Amendment (Reform) Act 2010 Act No. 51 of 2010 as amended This compilation was prepared on 29 November 2012 taking into account amendments up to Act No. 136 of 2012 The text of any of those amendments not in force on that date is appended in the Notes section The operation of amendments that have been incorporated may be affected by application provisions that are set out in the Notes section Prepared by the Office of Parliamentary Counsel, Canberra Contents 1 Short title [see Note 1]........................... 2 Commencement 3 Schedule(s) Schedule 1—Objects Freedom of Information Act 1982 Schedule 2—Publication of information Freedom of Information Act 1982 Schedule 3—Exemptions Part 1—Open access period amendments Archives Act 1983 Part 2—Main exemption amendments Freedom of Information Act 1982 Part 3—Other exemption amendments Archives Act 1983 Privacy Act 1988 Part 4—Application provisions Schedule 4—Information Commissioner amendments Part 1—Main amendments Freedom of Information Act 1982 Part 2—Other amendments Ombudsman Act 1976 Part 3—Application and transitional provisions Schedule 5—Amendments consequential on the establishment of the Office of the Australian Information Commissioner Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 Australian Citizenship Act 2007 Australian Human Rights Commission Act 1986 Aviation Legislation Amendment (2008 Measures No. 2) Act 2009 Child Care Act 1972 Crimes Act 1914 Data‑matching Program (Assistance and Tax) Act 1990 Environment Protection and Biodiversity Conservation Act 1999 Fair Work Act 2009 Fisheries Management Act 1991 Migration Act 1958 National Health Act 1953 National Health and Medical Research Council Act 1992 Privacy Act 1988 Telecommunications Act 1997 Telecommunications (Interception and Access) Act 1979 Torres Strait Fisheries Act 1984 Schedule 6—Other amendments Part 1—Amendments to the Freedom of Information Act 1982 Freedom of Information Act 1982 Part 2—Application provisions Part 3—Amendment of other Acts Administrative Appeals Tribunal Act 1975 Australian Crime Commission Act 2002 Environment Protection and Biodiversity Conservation Act 1999 Inspector‑General of Intelligence and Security Act 1986 Schedule 7—Privacy Commissioner transition Part 1—Preliminary Part 2—Office holders, staff and consultants Part 3—Things done by, or in relation to, the Privacy Commissioner Part 4—Investigations Part 5—Written instruments and reporting requirements Part 6—Legal and other proceedings Part 7—Miscellaneous Notes An Act to amend the law relating to access to information, and for related purposes 1 Short title [see Note 1] This Act may be cited as the Freedom of Information Amendment (Reform) Act 2010. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 31 May 2010 2. Schedule 1 Immediately after the commencement of section 3 of the Australian Information Commissioner Act 2010. 1 November 2010 However, if section 3 of the Australian Information Commissioner Act 2010 does not commence, the provision(s) do not commence at all. 3. Schedule 2 The day after the end of the period of 6 months beginning on the day section 3 of the Australian Information Commissioner Act 2010 commences. 1 May 2011 However, if section 3 of the Australian Information Commissioner Act 2010 does not commence, the provision(s) do not commence at all. 4. Schedule 3, items 1 to 14 Immediately after the commencement of section 3 of the Australian Information Commissioner Act 2010. 1 November 2010 However, if section 3 of the Australian Information Commissioner Act 2010 does not commence, the provision(s) do not commence at all. 5. Schedule 3, item 15 The day after the end of the period of 6 months beginning on the day section 3 of the Australian Information Commissioner Act 2010 commences. 1 May 2011 However, if section 3 of the Australian Information Commissioner Act 2010 does not commence, the provision(s) do not commence at all. 6. Schedule 3, items 16 to 40 Immediately after the commencement of section 3 of the Australian Information Commissioner Act 2010. 1 November 2010 However, if section 3 of the Australian Information Commissioner Act 2010 does not commence, the provision(s) do not commence at all. 7. Schedules 4 to 7 Immediately after the commencement of section 3 of the Australian Information Commissioner Act 2010. 1 November 2010 However, if section 3 of the Australian Information Commissioner Act 2010 does not commence, the provision(s) do not commence at all. Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Objects Freedom of Information Act 1982 1 Section 3 Repeal the section, substitute: 3 Objects—general (1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by: (a) requiring agencies to publish the information; and (b) providing for a right of access to documents. (2) The Parliament intends, by these objects, to promote Australia's representative democracy by contributing towards the following: (a) increasing public participation in Government processes, with a view to promoting better‑informed decision‑making; (b) increasing scrutiny, discussion, comment and review of the Government's activities. (3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource. (4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost. 3A Objects—information or documents otherwise accessible Scope (1) This section applies if a Minister, or an officer of an agency, has the power to publish, or give access to, information or a document (including an exempt document) apart from under this Act. Publication and access powers not limited (2) The Parliament does not intend, by this Act, to limit that power, or to prevent or discourage the exercise of that power: (a) in the case of the power to publish the information or document—despite any restriction on the publication of the information or document under this Act; and (b) in the case of the power to give access to the information or document—whether or not access to the information or document has been requested under section 15. 2 Section 14 Repeal the section. Schedule 2—Publication of information Freedom of Information Act 1982 1 Subsection 4(1) Insert: operational information has the meaning given by section 8A. 2 Subsection 4(9) Omit "of this Act (other than sections 8 and 93)". 3 Part II Repeal the Part, substitute: Part II—Information publication scheme Division 1—Guide to this Part 7A Information publication scheme—guide This Part establishes an information publication scheme for agencies. Each agency must publish a plan showing how it proposes to implement this Part. An agency must publish a range of information including information about what the agency does and the way it does it, as well as information dealt with or used in the course of its operations, some of which is called operational information. In addition, an agency may publish other information held by the agency. Information published by an agency must be kept accurate, up‑to‑date and complete. An agency is not required to publish exempt matter. An agency is also not required to publish information if prohibited by another enactment. The information (or details of how to access the information) must be published on a website. If there is a charge for accessing the information, the agency must publish details of the charge. An agency must, in conjunction with the Information Commissioner, review the operation of the scheme in the agency every 5 years (if not earlier). An agency must have regard to the objects of this Act, and guidelines issued by the Information Commissioner, in doing anything for the purposes of this Part. If operational information is not published in accordance with this Part, a person must not be subjected to any prejudice as a result of not having access to the information. Division 2—Information to be published 8 Information to be published—what information? Agency plans (1) An agency must prepare a plan showing the following: (a) what information the agency proposes to publish for the purposes of this Part; (b) how, and to whom, the agency proposes to publish information for the purposes of this Part; (c) how the agency otherwise proposes to comply with this Part. Information that must be published (2) The agency must publish the following information: (a) the plan prepared under subsection (1); (b) details of the structure of the agency's organisation (for example, in the form of an organisation chart); (c) as far as practicable, details of the functions of the agency, including its decision‑making powers and other powers affecting members of the public (or any particular person or entity, or class of persons or entities); (d) details of appointments of officers of the agency that are made under Acts (other than APS employees within the meaning of the Public Service Act 1999); (e) the information in annual reports prepared by the agency that are laid before the Parliament; (f) details of arrangements for members of the public to comment on specific policy proposals for which the agency is responsible, including how (and to whom) those comments may be made; (g) information in documents to which the agency routinely gives access in response to requests under Part III (access to documents), except information of the following kinds: (i) personal information about any individual, if it would be unreasonable to publish the information; (ii) information about the business, commercial, financial or professional affairs of any person, if it would be unreasonable to publish the information; (iii) other information of a kind determined by the Information Commissioner under subsection (3), if it would be unreasonable to publish the information; (h) information held by the agency that is routinely provided to the Parliament in response to requests and orders from the Parliament; (i) contact details for an officer (or officers) who can be contacted about access to the agency's information or documents under this Act; (j) the agency's operational information (see section 8A). Note: If operational information is not published in accordance with this section, a person must not be subjected to any prejudice as a result (see section 10). (3) The Information Commissioner may, by legislative instrument, make a determination for the purposes of subparagraph (2)(g)(iii). Other information (4) The agency may publish other information held by the agency. Functions and powers (5) This section applies to a function or power of an agency whether or not the agency has the function or power under an enactment. Note 1: See section 8C for restrictions on the requirement to publish this information. Note 2: The agency must have regard to the objects of this Act and guidelines issued by the Information Commissioner in performing functions, and exercising powers, under this section (see section 9A). 8A Information to be published—what is operational information? (1) An agency's operational information is information held by the agency to assist the agency to perform or exercise the agency's functions or powers in making decisions or recommendations affecting members of the public (or any particular person or entity, or class of persons or entities). Example: The agency's rules, guidelines, practices and precedents relating to those decisions and recommendations. (2) An agency's operational information does not include information that is available to members of the public otherwise than by being published by (or on behalf of) the agency. 8B Information to be published—accuracy etc. An agency must ensure that information published by the agency as required or permitted by this Part is accurate, up‑to‑date and complete. 8C Information to be published—restrictions Exempt documents (1) An agency is not required under this Part to publish exempt matter. Publication prohibited or restricted by other legislation (2) If an enactment restricts or prohibits the publication of particular information, an agency is not required under this Part to publish the information otherwise than as permitted or required by the enactment. Operation of restrictions (3) This section applies despite section 8. 8D Information to be published—how (and to whom) information is to be published Scope (1) An agency must publish information that is required or permitted to be published under this Part in accordance with this section. How (and to whom) information is to be published (2) The agency must publish the information: (a) to members of the public generally; and (b) if the agency considers that it is appropriate to do so—to particular classes of persons or entities. (3) The agency must publish the information on a website by: (a) making the information available for downloading from the website; or (b) publishing on the website a link to another website, from which the information can be downloaded; or (c) publishing on the website other details of how the information may be obtained. Charges (4) The agency may impose a charge on a person for accessing the information only if: (a) the person does not directly access the information by downloading it from the website (or another website); and (b) the charge is to reimburse the agency for specific reproduction costs, or other specific incidental costs, incurred in giving the person access to that particular information. (5) If there is a charge for accessing the information, the agency must publish details of the charge in the same way as the information is published under this section. Note 1: The agency must have regard to the objects of this Act and guidelines issued by the Information Commissioner in performing functions, and exercising powers, under this section (see section 9A). Note 2: After access is given to a document under Part III (access to documents) in accordance with a request, the agency must publish the accessed document to members of the public generally in the same way as described in this section (although certain exceptions apply) (see section 11C). 8E Information to be published—Information Commissioner to assist agencies The Information Commissioner may provide appropriate assistance to an agency in: (a) identifying and preparing information which is required or permitted to be published under this Part; and (b) determining how (and to whom) the information is required or permitted to be published under section 8D. Division 3—Review of information publication scheme 8F Review of scheme—Information Commissioner functions The Information Commissioner has the following functions (as conferred by this Act and the Australian Information Commissioner Act 2010, but without limiting any provision of either Act): (a) reviewing the operation in each agency of the information publication scheme established by this Part, in conjunction with the agency; (b) investigating an agency's compliance with this Part under Division 2 of Part VIIB (Information Commissioner investigations); (c) otherwise monitoring, investigating and reporting on the operation of the scheme. 9 Review of scheme—by agencies (1) An agency must, in conjunction with the Information Commissioner, complete a review of the operation, in the agency, of the information publication scheme established by this Part: (a) as appropriate from time to time; and (b) in any case—within 5 years after the last time a review under this section was completed. (2) The first review under subsection (1) must be completed within 5 years after the day this section commences. Note 1: This section commences on the day after the end of the period of 6 months beginning on the day on which the Australian Information Commissioner Act 2010 commences. Note 2: The agency must have regard to the objects of this Act and guidelines issued by the Information Commissioner in performing functions, and exercising powers, under this section (see section 9A). Division 4—Guidelines 9A Functions and powers under this Part In performing a function, or exercising a power, under this Part, an agency must have regard to: (a) the objects of this Act (including all the matters set out in sections 3 and 3A); and (b) guidelines issued by the Information Commissioner for the purposes of this paragraph under section 93A. Division 5—Miscellaneous 10 Unpublished operational information Scope (1) This section applies if: (a) part (or all) of an agency's operational information (the unpublished information), in relation to a function or power of the agency, is not published by the agency in accordance with this Part; and (b) a person engages in conduct relevant to the performance of the function or the exercise of the power; and (c) at the time of engaging in that conduct: (i) the person was not aware of the unpublished information; and (ii) the agency had been in existence for more than 12 months. Note: An agency's operational information is required to be published by the agency (see sections 8 and 8A). No prejudice from lack of awareness of unpublished information (2) The person must not be subjected to any prejudice only because of the application to that conduct of any rule, guideline or practice in the unpublished information, if the person could lawfully have avoided that prejudice had he or she been aware of the unpublished information. 10A Who performs functions etc. given to agencies (1) A function or power given to an agency under this Part may be performed or exercised, on behalf of the agency, by: (a) the principal officer of the agency; or (b) an officer of the agency acting within the scope of his or her authority in accordance with arrangements approved by the principal officer of the agency. (2) The performance or exercise of a function or power under paragraph (1)(b) is subject to the regulations. 4 Saving—unpublished information Section 10 of the Freedom of Information Act 1982, as in force immediately before the commencement of item 3 (the commencement time), continues in force at and after the commencement time in relation to: (a) a document relating to a function of an agency, required to be made available in accordance with section 9 of that Act before the commencement time; and (b) conduct engaged in by a person before the commencement time that is relevant to the performance of that function. Note: Item 3 commences on the day after the end of the period of 6 months beginning on the day on which the Australian Information Commissioner Act 2010 commences. Schedule 3—Exemptions Part 1—Open access period amendments Archives Act 1983 1 Subsection 3(1) Insert: open access period, in relation to a record, has the meaning given by the following provisions: (a) for a Cabinet notebook—section 22A; (b) for a record containing Census information—section 22B; (c) for any other record—subsection (7) of this section. 2 Subsection 3(7) Repeal the subsection (including the note), substitute: (7) For the purposes of this Act, subject to sections 22A and 22B, work out when a record is in the open access period in accordance with the following table: Open access period for records Item If the record came into existence in any of the following years (ending on 31 December): the record is in the open access period on and after the following day: 1 a year (the creation year) before 1980 1 January in the year that is 31 years after the creation year. Example: A record that came into existence in the year 1979 is in the open access period on and after 1 January 2010. 2 1980 or 1981 1 January 2011. 3 1982 or 1983 1 January 2012. 4 1984 or 1985 1 January 2013. 5 1986 or 1987 1 January 2014. 6 1988 or 1989 1 January 2015. 7 1990 or 1991 1 January 2016. 8 1992 or 1993 1 January 2017. 9 1994 or 1995 1 January 2018. 10 1996 or 1997 1 January 2019. 11 1998 or 1999 1 January 2020. 12 2000 1 January 2021. 13 a year (the creation year) after 2000 1 January in the year that is 21 years after the creation year. Example: A record that came into existence in the year 2001 is in the open access period on and after 1 January 2022. Note: Cabinet notebooks and records containing Census information have different open access periods (see sections 22A and 22B). 3 Subsection 22A(1) Repeal the subsection, substitute: (1) For the purposes of this Act, work out when a Cabinet notebook is in the open access period in accordance with the following table: Open access period for Cabinet notebooks Item If the Cabinet notebook came into existence in any of the following years (ending on 31 December): the Cabinet notebook is in the open access period on and after the following day: 1 a year (the creation year) before 1960 1 January in the year that is 51 years after the creation year. Example: A Cabinet notebook that came into existence in the year 1959 is in the open access period on and after 1 January 2010. 2 1960, 1961 or 1962 1 January 2011. 3 1963, 1964 or 1965 1 January 2012. 4 1966, 1967 or 1968 1 January 2013. 5 1969, 1970 or 1971 1 January 2014. 6 1972, 1973 or 1974 1 January 2015. 7 1975, 1976 or 1977 1 January 2016. 8 1978, 1979 or 1980 1 January 2017. 9 1981, 1982 or 1983 1 January 2018. 10 1984, 1985 or 1986 1 January 2019. 11 1987, 1988 or 1989 1 January 2020. 12 1990 1 January 2021. 13 a year (the creation year) after 1990 1 January in the year that is 31 years after the creation year. Example: A Cabinet notebook that came into existence in the year 1991 is in the open access period on and after 1 January 2022. Note: Records that are not Cabinet notebooks have different open access periods (see subsection 3(7) (general records) and section 22B (records containing Census information)). 4 Paragraph 26(1)(a) Omit "25 years", substitute "15 years". 5 Paragraph 27(3)(b) Omit "25 years", substitute "15 years". 6 Subsection 30(2) Omit "25 years", substitute "15 years". Part 2—Main exemption amendments Freedom of Information Act 1982 7 Subsection 4(1) Insert: Cabinet includes a committee of the Cabinet. 8 Subsection 4(1) (definition of Cabinet notebook) Omit "or of a committee of the Cabinet, being notes", substitute ", if the notes were". 9 Subsection 4(1) Insert: conditionally exempt: a document is conditionally exempt if Division 3 of Part IV (public interest conditional exemptions) applies to the document. Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A). 10 Subsection 4(1) (definition of edited copy) Repeal the definition, substitute: edited copy has the meaning given by section 22 (access to edited copies with exempt or irrelevant matter deleted). 11 Subsection 4(1) (paragraph (a) of the definition of exempt document) Repeal the paragraph, substitute: (a) a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B); or 12 Subsection 4(1) Insert: run out: all of a person's opportunities for review or appeal in relation to an access grant decision have run out when: (a) the latest time for applying for an internal review or an IC review in relation to the decision has ended, if the person has not applied for either review; or (b) if the person has applied for an internal review in relation to the decision: (i) the internal review is concluded; and (ii) the time for applying for an IC review of the decision on internal review has ended, if the person has not applied for the IC review; or (c) if the person has applied for an IC review in relation to the decision: (i) proceedings in relation to the IC review are concluded; and (ii) the time for applying to the Tribunal for a review in relation to the decision has ended, if the person has not applied for such a review; and (iii) the time for instituting an appeal to the Federal Court in relation to the IC review has ended (with no appeal instituted), or, if an appeal has been instituted, all proceedings in relation to the appeal have been concluded; or (d) if the person has applied to the Tribunal for a review in relation to the decision: (i) proceedings in relation to the review are concluded; and (ii) the time for instituting an appeal to the Federal Court in relation to the review by the Tribunal has ended (with no appeal instituted), or, if an appeal has been instituted, all proceedings in relation to the appeal have been concluded. Note: The time for applying for a review of a decision may be extended in certain circumstances (see sections 54B and 54T). 13 At the end of section 4 Add: (10) To avoid doubt, information or matter communicated in the way mentioned in paragraph 33(b) includes information or matter so communicated pursuant to any treaty or formal instrument on the reciprocal protection of classified information between the Government of the Commonwealth, or an authority of the Commonwealth, and: (a) a foreign government or an authority of a foreign government; or (b) an international organisation. Note: Section 33 deals with documents affecting national security, defence or international relations. 14 After section 11 Insert: 11A Access to documents on request Scope (1) This section applies if: (a) a request is made by a person, in accordance with subsection 15(2), to an agency or Minister for access to: (i) a document of the agency; or (ii) an official document of the Minister; and (b) any charge that, under the regulations, is required to be paid before access is given has been paid. (2) This section applies subject to this Act. Note: Other provisions of this Act are relevant to decisions about access to documents, for example the following: (a) section 12 (documents otherwise available); (b) section 13 (documents in national institutions); (c) section 15A (personnel records); (d) section 22 (access to edited copies with exempt or irrelevant matter deleted). Mandatory access—general rule (3) The agency or Minister must give the person access to the document in accordance with this Act, subject to this section. Exemptions and conditional exemptions (4) The agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document. Note: Access may be given to an exempt document apart from under this Act, whether or not in response to a request (see section 3A (objects—information or documents otherwise accessible)). (5) The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest. Note 1: Division 3 of Part IV provides for when a document is conditionally exempt. Note 2: A conditionally exempt document is an exempt document if access to the document would, on balance, be contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)). Note 3: Section 11B deals with when it is contrary to the public interest to give a person access to the document. (6) Despite subsection (5), the agency or Minister is not required to give access to the document at a particular time if, at that time, the document is both: (a) a conditionally exempt document; and (b) an exempt document: (i) under Division 2 of Part IV (exemptions); or (ii) within the meaning of paragraph (b) or (c) of the definition of exempt document in subsection 4(1). 11B Public interest exemptions—factors Scope (1) This section applies for the purposes of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under subsection 11A(5). (2) This section does not limit subsection 11A(5). Factors favouring access (3) Factors favouring access to the document in the public interest include whether access to the document would do any of the following: (a) promote the objects of this Act (including all the matters set out in sections 3 and 3A); (b) inform debate on a matter of public importance; (c) promote effective oversight of public expenditure; (d) allow a person to access his or her own personal information. Irrelevant factors (4) The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest: (a) access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government; (b) access to the document could result in any person misinterpreting or misunderstanding the document; (c) the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made; (d) access to the document could result in confusion or unnecessary debate. Guidelines (5) In working out whether access to the document would, on balance, be contrary to the public interest, an agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of this subsection under section 93A. 15 Before section 12 Insert: 11C Publication of information in accessed documents Scope (1) This section applies to information if an agency or Minister gives a person access to a document under section 11A containing the information, except in the case of any of the following: (a) personal information about any person, if it would be unreasonable to publish the information; (b) information about the business, commercial, financial or professional affairs of any person, if it would be unreasonable to publish the information; (c) other information of a kind determined by the Information Commissioner under subsection (2), if it would be unreasonable to publish the information; (d) any information, if it is not reasonably practicable to publish the information under this section because of the extent of any modifications to a document (or documents) necessary to delete information mentioned in paragraphs (a) to (c). (2) The Information Commissioner may, by legislative instrument, make a determination for the purposes of paragraph (1)(c). Publication (3) The agency, or the Minister, must publish the information to members of the public generally on a website by: (a) making the information available for downloading from the website; or (b) publishing on the website a link to another website, from which the information can be downloaded; or (c) publishing on the website other details of how the information may be obtained. (4) The agency may impose a charge on a person for accessing the information only if: (a) the person does not directly access the information by downloading it from the website (or another website); and (b) the charge is to reimburse the agency for a specific reproduction cost, or other specific incidental costs, incurred in giving the person access to that particular information. (5) If there is a charge for accessing the information, the agency or Minister must publish details of the charge in the same way as the information is published under this section. Time limit for publication (6) The agency or Minister must comply with this section within 10 working days after the day the person is given access to the document. (7) In this section: working day means a day that is not: (a) a Saturday; or (b) a Sunday; or (c) a public holiday in the place where the function of publishing the information under this section is to be performed. 16 Section 18 Repeal the section. 17 Section 22 Repeal the section, substitute: 22 Access to edited copies with exempt or irrelevant matter deleted Scope (1) This section applies if: (a) an agency or Minister decides: (i) to refuse to give access to an exempt document; or (ii) that to give access to a document would disclose information that would reasonably be regarded as irrelevant to the request for access; and (b) it is possible for the agency or Minister to prepare a copy (an edited copy) of the document, modified by deletions, ensuring that: (i) access to the edited copy would be required to be given under section 11A (access to documents on request); and (ii) the edited copy would not disclose any information that would reasonably be regarded as irrelevant to the request; and (c) it is reasonably practicable for the agency or Minister to prepare the edited copy, having regard to: (i) the nature and extent of the modification; and (ii) the resources available to modify the document; and (d) it is not apparent (from the request or from consultation with the applicant) that the applicant would decline access to the edited copy. Access to edited copy (2) The agency or Minister must: (a) prepare the edited copy as mentioned in paragraph (1)(b); and (b) give the applicant access to the edited copy. Notice to applicant (3) The agency or Minister must give the applicant notice in writing: (a) that the edited copy has been prepared; and (b) of the grounds for the deletions; and (c) if any matter deleted is exempt matter—that the matter deleted is exempt matter because of a specified provision of this Act. (4) Section 26 (reasons for decision) does not apply to the decision to refuse access to the whole document unless the applicant requests the agency or Minister to give the applicant a notice in writing in accordance with that section. 18 Subsections 25(1) and (2) Omit "or 33A" (wherever occurring). 19 At the end of paragraph 26(1)(a) Add "and". 20 After paragraph 26(1)(a) Insert: (aa) in the case of a decision to refuse to give access to a conditionally exempt document—include in those reasons the public interest factors taken into account in making the decision; and Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A). 21 Sections 26A, 27, 27A and 28 Repeal the sections, substitute: 26A Consultation—documents affecting Commonwealth‑State relations Scope (1) This section applies if: (a) arrangements have been entered into between the Commonwealth and a State about consultation under this section; and (b) a request is made to an agency or Minister for access to a document that: (i) originated with, or was received from, the State or an authority of the State; or (ii) contains information (State‑originated information) that originated with, or was received from, the State or an authority of the State; and (c) it appears to the agency or Minister that the State may reasonably wish to contend that: (i) the document is conditionally exempt under section 47B (Commonwealth‑State relations); and (ii) access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5). Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A). Consultation required (2) The agency or Minister must not decide to give the applicant access to the document unless consultation has taken place between the Commonwealth and the State in accordance with the arrangements. Decision to give access (3) If, after such consultation has taken place, the agency or Minister decides to give the applicant access to the document, the agency or Minister must give written notice of the decision to both of the following: (a) the State; (b) the applicant. Access not to be given until review or appeal opportunities have run out (4) However, the agency or Minister must not give the applicant access to the document unless, after all the opportunities of the State for review or appeal in relation to the decision to give access to the document have run out, the decision still stands, or is confirmed. Note 1: The decision to give access to the document is subject to internal review (see Part VI), review by the Information Commissioner (see Part VII) and review by the Tribunal (see Part VIIA). Note 2: For when all opportunities for review or appeal in relation to the decision to give access to the document have run out, see subsection 4(1). Edited copies and State‑originated information (5) This section applies: (a) in relation to an edited copy of a document—in the same way as it applies to the document; and (b) in relation to a document containing State‑originated information—to the extent to which the document contains such information. 27 Consultation—business documents Scope (1) This section applies if: (a) a request is made to an agency or Minister for access to a document containing information (business information) covered by subsection (2) in respect of a person, organisation or undertaking; and (b) it appears to the agency or Minister that the person, organisation or proprietor of the undertaking (the person or organisation concerned) might reasonably wish to make a contention (the exemption contention) that: (i) the document is exempt under section 47 (trade secrets etc.); or (ii) the document is conditionally exempt under section 47G (business information) and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5). Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A). (2) This subsection covers the following information: (a) in relation to a person—information about the person's business or professional affairs; (b) in relation to an organisation or undertaking—information about the business, commercial or financial affairs of the organisation or undertaking. (3) In determining, for the purposes of paragraph (1)(b), whether the person or organisation concerned might reasonably wish to make an exemption contention because of business information in a document, the agency or Minister must have regard to the following matters: (a) the extent to which the information is well known; (b) whether the person, organisation or undertaking is known to be associated with the matters dealt with in the information; (c) the availability of the information from publicly accessible sources; (d) any other matters that the agency or Minister considers relevant. Opportunity to make submissions (4) The agency or Minister must not decide to give access to the document unless: (a) the person or organisation concerned is given a reasonable opportunity to make submissions in support of the exemption contention; and (b) the agency or the Minister has regard to any submissions so made. (5) However, subsection (4) only applies if it is reasonably practicable for the agency or Minister to give the person or organisation concerned a reasonable opportunity to make submissions in support of the exemption contention, having regard to all the circumstances (including the application of subsections 15(5) and (6) (time limits for processing requests)). Notice of decision to give access (6) If the agency or Minister decides to give access to the document, the agency or Minister must give written notice of the decision to both of the following: (a) the person or organisation concerned; (b) the applicant. Access not to be given until review or appeal opportunities have run out (7) However, the agency or Minister must not give the applicant access to the document unless, after all the opportunities of the person or organisation concerned for review or appeal in relation to the decision to give access to the document have run out, the decision to give access still stands, or is confirmed. Note 1: The decision to give access to the document is subject to internal review (see Part VI), review by the Information Commissioner (see Part VII) and review by the Tribunal (see Part VIIA). Note 2: For when all opportunities for review or appeal in relation to the decision to give access to the document have run out, see subsection 4(1). Notice and stay of decision not to apply unless submission made in support of exemption contention (8) Subsections (6) and (7) do not apply unless the person or organisation concerned makes a submission in support of the exemption contention as allowed under paragraph (4)(a). Edited copies and business information (9) This section applies: (a) in relation to an edited copy of a document—in the same way as it applies to the document; and (b) in relation to a document containing business information—to the extent to which the document contains such information. 27A Consultation—documents affecting personal privacy Scope (1) This section applies if: (a) a request is made to an agency or Minister for access to a document containing personal information about a person (including a person who has died); and (b) it appears to the agency or Minister that the person or the person's legal personal representative (the person concerned) might reasonably wish to make a contention (the exemption contention) that: (i) the document is conditionally exempt under section 47F; and (ii) access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5). Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A). (2) In determining, for the purposes of paragraph (1)(b), whether the person concerned might reasonably wish to make an exemption contention because of personal information in a document, the agency or Minister must have regard to the following matters: (a) the extent to which the information is well known; (b) whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the information; (c) the availability of the information from publicly accessible sources; (d) any other matters that the agency or Minister considers relevant. Opportunity to make submissions (3) The agency or Minister must not decide to give the applicant access to the document unless: (a) the person concerned is given a reasonable opportunity to make submissions in support of the exemption contention; and (b) the agency or the Minister has regard to any submissions so made. (4) However, subsection (3) only applies if it is reasonably practicable for the agency or Minister to give the person concerned a reasonable opportunity to make submissions in support of the exemption contention, having regard to all the circumstances (including the application of subsections 15(5) and (6) (time limits for processing requests)). Decision to give access (5) If the agency or Minister decides to give access to the document, the agency or Minister must give written notice of the decision to both of the following: (a) the person concerned; (b) the applicant. Access not to be given until review or appeal opportunities have run out (6) However, the agency or Minister must not give the applicant access to the document unless, after all the opportunities of the person concerned for review or appeal in relation to the decision to give access to the document have run out, the decision to give access still stands, or is confirmed. Note 1: The decision to give access to the document is subject to internal review (see Part VI), review by the Information Commissioner (see Part VII) and review by the Tribunal (see Part VIIA). Note 2: For when all opportunities for review or appeal in relation to the decision to give access to the document have run out, see subsection 4(1). Notice and stay of decision not to apply unless submission made in support of exemption contention (7) Subsections (5) and (6) do not apply unless the person concerned makes a submission in support of the exemption contention as allowed under paragraph (3)(a). Edited copies and personal information (8) This section applies: (a) in relation to an edited copy of a document—in the same way as it applies to the document; and (b) in relation to a document containing personal information—to the extent to which the document contains such information. 22 Before section 32 Insert: Division 1—Preliminary 31A Access to exempt and conditionally exempt documents The following table summarises how this Act applies to exempt documents and documents that are conditionally exempt: How this Act applies to exempt and conditionally exempt documents Item If … then … because of … 1 a document is an exempt document under Division 2 (exemptions) or under paragraph (b) or (c) of the definition of exempt document in subsection 4(1) access to the document is not required to be given subsection 11A(4). 2 a document is a conditionally exempt document under Division 3 (public interest conditional exemptions) access to the document is required to be given, unless it would be contrary to the public interest subsection 11A(5) (see also section 11B (public interest factors)). 3 a document is an exempt document as mentioned in item 1, and also a conditionally exempt document under Division 3 access to the document is not required to be given subsections 11A(4) and (6), and section 32 (interpretation). 4 access to a document is refused because it contains exempt matter, and the exempt matter can be deleted (a) an edited copy deleting the exempt matter must be prepared (if practicable); and section 22. (b) access to the edited copy must be given; 5 a document is an exempt document because of any provision of this Act access to the document may be given apart from under this Act section 3A (objects—information or documents otherwise accessible). 31B Exempt documents for the purposes of this Part A document is exempt for the purposes of this Part if: (a) it is an exempt document under Division 2; or (b) it is conditionally exempt under Division 3, and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5). Note 1: A document is an exempt document for the purposes of this Act (see subsection 4(1)) if: (a) it is exempt under this section; or (b) it is exempt because of section 7 (exemption of certain persons and bodies); or (c) it is an official document of a Minister that contains matters not relating to the affairs of an agency or a Department of State. Note 2: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A). 23 Section 32 After "exempt documents" (wherever occurring), insert ", or are conditionally exempt". 24 After section 32 Insert: Division 2—Exemptions 25 At the end of section 33 Add: Note: See also subsection 4(10). 26 Sections 33A to 36 Repeal the sections, substitute: 34 Cabinet documents General rules (1) A document is an exempt document if: (a) both of the following are satisfied: (i) it has been submitted to the Cabinet for its consideration, or is or was proposed by a Minister to be so submitted; (ii) it was brought into existence for the dominant purpose of submission for consideration by the Cabinet; or (b) it is an official record of the Cabinet; or (c) it was brought into existence for the dominant purpose of briefing a Minister on a document to which paragraph (a) applies; or (d) it is a draft of a document to which paragraph (a), (b) or (c) applies. (2) A document is an exempt document to the extent that it is a copy or part of, or contains an extract from, a document to which subsection (1) applies. (3) A document is an exempt document to the extent that it contains information the disclosure of which would reveal a Cabinet deliberation or decision, unless the existence of the deliberation or decision has been officially disclosed. Exceptions (4) A document is not an exempt document only because it is attached to a document to which subsection (1), (2) or (3) applies. Note: However, the attachment itself may be an exempt document. (5) A document by which a decision of the Cabinet is officially published is not an exempt document. (6) Information in a document to which subsection (1), (2) or (3) applies is not exempt matter because of this section if the information consists of purely factual material, unless: (a) the disclosure of the information would reveal a Cabinet deliberation or decision; and (b) the existence of the deliberation or decision has not been officially disclosed. 27 Sections 39, 40 and 41 Repeal the sections. 28 Subsection 42(2) Repeal the subsection, substitute: (2) A document is not an exempt document because of subsection (1) if the person entitled to claim legal professional privilege in relation to the production of the document in legal proceedings waives that claim. (3) A document is not an exempt document under subsection (1) by reason only that: (a) the document contains information that would (apart from this subsection) cause the document to be exempt under subsection (1); and (b) the information is operational information of an agency. Note: For operational information, see section 8A. 29 Sections 43, 43A and 44 Repeal the sections. 30 Subsection 45(2) Omit "any document to the disclosure of which paragraph 36(1)(a) applies or would apply, but for the operation of subsection 36(2), (5) or (6), being a document", substitute "a document to which subsection 47C(1) (deliberative processes) applies (or would apply, but for subsection 47C(2) or (3)), that is". 31 Subsection 45(2) After "unless the disclosure", insert "of the document". 32 Section 47 Repeal the section, substitute: 47 Documents disclosing trade secrets or commercially valuable information (1) A document is an exempt document if its disclosure under this Act would disclose: (a) trade secrets; or (b) any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed. (2) Subsection (1) does not have effect in relation to a request by a person for access to a document: (a) by reason only of the inclusion in the document of information concerning that person in respect of his or her business or professional affairs; or (b) by reason only of the inclusion in the document of information concerning the business, commercial or financial affairs of an undertaking where the person making the request is the proprietor of the undertaking or a person acting on behalf of the proprietor; or (c) by reason only of the inclusion in the document of information concerning the business, commercial or financial affairs of an organisation where the person making the request is the organisation or a person acting on behalf of the organisation. (3) A reference in this section to an undertaking includes a reference to an undertaking that is carried on by, or by an authority of, the Commonwealth or a State or by a local government authority. 33 At the end of Part IV Add: Division 3—Public interest conditional exemptions 47B Public interest conditional exemptions—Commonwealth‑State relations A document is conditionally exempt if disclosure of the document under this Act: (a) would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State; or (b) would divulge information or matter communicated in confidence by or on behalf of the Government of a State or an authority of a State, to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth. Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A). 47C Public interest conditional exemptions—deliberative processes General rule (1) A document is conditionally exempt if its disclosure under this Act would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth. Exceptions (2) Deliberative matter does not include either of the following: (a) operational information (see section 8A); (b) purely factual material. Note: An agency must publish its operational information (see section 8). (3) This section does not apply to any of the following: (a) reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters; (b) reports of a body or organisation, prescribed by the regulations, that is established within an agency; (c) the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function. Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A). 47D Public interest conditional exemptions—financial or property interests of the Commonwealth A document is conditionally exempt if its disclosure under this Act would have a substantial adverse effect on the financial or property interests of the Commonwealth or of an agency. Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A). 47E Public interest conditional exemptions—certain operations of agencies A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following: (a) prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency; (b) prejudice the attainment of the objects of particular tests, examinations or audits conducted or to be conducted by an agency; (c) have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency; (d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency. Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A). 47F Public interest conditional exemptions—personal privacy General rule (1) A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person). (2) In determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister must have regard to the following matters: (a) the extent to which the information is well known; (b) whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document; (c) the availability of the information from publicly accessible sources; (d) any other matters that the agency or Minister considers relevant. (3) Subject to subsection (5), subsection (1) does not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person. Access given to qualified person instead (4) Subsection (5) applies if: (a) a request is made to an agency or Minister for access to a document of the agency, or an official document of the Minister, that contains information concerning the applicant, being information that was provided by a qualified person acting in his or her capacity as a qualified person; and (b) it appears to the principal officer of the agency or to the Minister (as the case may be) that the disclosure of the information to the applicant might be detrimental to the applicant's physical or mental health, or well‑being. (5) The principal officer or Minister may, if access to the document would otherwise be given to the applicant, direct that access to the document, so far as it contains that information, is not to be given to the applicant but is to be given instead to a qualified person who: (a) carries on the same occupation, of a kind mentioned in the definition of qualified person in subsection (7), as the first‑mentioned qualified person; and (b) is to be nominated by the applicant. (6) The powers and functions of the principal officer of an agency under this section may be exercised by an officer of the agency acting within his or her scope of authority in accordance with arrangements referred to in section 23. (7) In this section: qualified person means a person who carries on, and is entitled to carry on, an occupation that involves the provision of care for the physical or mental health of people or for their well‑being, and, without limiting the generality of the foregoing, includes any of the following: (a) a medical practitioner; (b) a psychiatrist; (c) a psychologist; (d) a counsellor; (e) a social worker. Note: Access must generally be given to a conditionally exempt document unless it would b