Western Australia: Freedom of Information Act 1992 (WA)

Western Australia Freedom of Information Act 1992 Western Australia Freedom of Information Act 1992 Contents Part 1 — Preliminary 1. Short title 1 2. Commencement 1 3. Objects of Act 1 4. Agencies, duties of when applying Act 1 5. Crown bound 1 6. Access rights etc. in Parts 2 and 4 do not apply to documents that are already available 1 7. Access rights in Parts 2 and 4, application of to private collections 1 8. Access rights etc. in Parts 2 and 4, effect of on other Acts etc. 1 9. Terms used (Glossary) 1 Part 2 — Access to documents Division 1 — Right of access and applications for access 10. Right of access to documents 1 11. Application for access 1 12. Access application, form etc. of 1 Division 2 — Procedure for dealing with access applications 13. Agency's duties as to access application etc. 1 14. Ambit of application may be reduced by agreement 1 15. Document held etc. by another agency, transferring application etc. in case of 1 16. Charge for access, calculation of etc. 1 17. Charge for access, applicant may request estimate of etc. 1 18. Deposit for charges, agency may require etc. 1 19. Notice given under s. 17(3) or 18, effect of on s. 13(1); applicant failing to respond to notice, effect of 1 20. Agency may refuse to deal with application in certain cases 1 21. Application for personal information about applicant, consideration of 1 22. Access, when agency must give 1 23. Refusing access, grounds for 1 24. Exempt matter, deleting before access given 1 25. Deferring access, grounds for 1 26. Documents that cannot be found or do not exist, notice of 1 27. Ways in which access can be given 1 28. Medical and psychiatric information about applicant, giving access to 1 29. Personal information about applicant, agency's duties when giving access to 1 30. Notice under s. 13(1)(b) of decision, form etc. of 1 31. Certain exempt matter (Sch. 1 cl. 1, 2 or 5), giving information about existence etc. of 1 Division 3 — Consultation with third parties 32. Personal information about third party, when access to may be given 1 33. Commercial etc. information of third party, when access to may be given 1 34. Consultation under s. 32 or 33, procedure after 1 35. Consultation under s. 32 or 33, Commissioner may waive 1 Division 4 — Exemption certificates 36. Premier may issue certificate 1 37. Effect of certificate 1 38. Duration of certificate 1 Division 5 — Internal review of decisions as to access 39. Review of decision under this Part, right to 1 40. Application for review 1 41. Who is to deal with application for review 1 42. How application for review to be dealt with 1 43. Decision can be confirmed, varied or reversed on review 1 44. No charge for review 1 Part 3 — Amendment of personal information Division 1 — Applications for amendment 45. Right to apply for information to be amended 1 46. Application for amendment, form etc. of 1 47. Document held etc. by another agency, transferring application in case of 1 48. Amending information, ways of 1 49. Decision on application, notice of 1 50. If application for amendment refused, applicant may request notation etc. disputing accuracy of information etc. 1 51. Claim that information is inaccurate etc., agency to give notice of in some cases 1 52. Reasons for not amending information, agency may add to notation 1 53. No charge for application or request 1 Division 2 — Internal review of decisions as to amendment of information 54. Review of decision under Div. 1, right to etc. 1 Part 4 — External review of decisions; appeals Division 1 — Information Commissioner 55. Office established etc. 1 56. Appointment, terms and conditions 1 57. Resignation 1 58. Suspension and removal 1 59. Acting Information Commissioner, appointing etc. 1 60. Oath or affirmation of office 1 61. Staff, appointment of etc. 1 62. Commissioner and staff, additional provisions about 1 Division 2 — Functions of Information Commissioner 63. Functions 1 64. Powers 1 Division 3 — Complaints and procedure for dealing with them 65. Complaint against agency's decision, making 1 66. Complaint, form etc. of 1 67. Commissioner may decide not to deal with a complaint 1 68. Complaint, agency etc. to be notified of 1 69. Complaint, who are parties to etc. 1 70. Complaint, procedure for dealing with 1 71. Complaint, conciliation etc. of 1 72. Information etc. relevant to complaint, Commissioner's powers to obtain etc. 1 73. Examination on oath, powers as to 1 74. Exempt matter etc., Commissioner to ensure non‑disclosure of 1 75. Document held by agency, Commissioner may require production of 1 76. Commissioner's other powers and duties when dealing with complaint 1 77. Exemption certificate, review of grounds for etc. 1 78. Question of law on complaint, referral of to Supreme Court 1 Division 4 — General provisions as to the Information Commissioner and staff 79. Delegation by Commissioner to staff 1 80. Protection from personal liability 1 81. Disclosure restriction under other law does not apply to disclosing to Commissioner; privileges of parties 1 82. Disclosure etc. of information obtained under Act restricted 1 83. Failure to give information etc. when required, offence 1 84. Costs of parties to complaints 1 Division 5 — Appeals to the Supreme Court 85. What may be appealed etc. 1 86. Parties to an appeal 1 87. Court's powers on appeal 1 Division 6 — General provisions as to proceedings in the Supreme Court 88. Term used: review proceedings 1 89. Terms etc., Court may impose; costs 1 90. Exempt matter etc., Court to ensure non‑disclosure of 1 91. Document held by agency, Court may require production of etc. 1 92. Disclosure restriction under other law does not apply to disclosing to Court 1 93. Other procedure, Court may determine 1 Part 5 — Publication of information about agencies 94. Term used: information statement 1 95. Term used: internal manual 1 96. Information statement, each agency to publish annually 1 97. Information statement and internal manual, each agency to make available etc. 1 Part 6 — Miscellaneous 98. Child or handicapped person, applications on behalf of 1 99. Defunct agency, performance of functions on behalf of 1 100. Who in agency makes its decisions 1 101. Notice sent by post or fax, presumed time of service of 1 102. Burden of proof 1 103. No review of decisions etc. except under this Act 1 104. Defamation or breach of confidence action, certain people protected from 1 105. Criminal liability, certain people protected from 1 106. Personal liability, certain people protected from 1 107. Failure to consult under Part 2 Div. 3, Crown etc. not liable in case of 1 108. Exempt matter does not have to be published 1 109. Personal information of another etc., obtaining access to by deceit etc. is offence 1 110. Destroying document to prevent access, offence 1 111. Annual report to Parliament 1 112. Regulations 1 113. Review of Act 1 Schedule 1 — Exempt matter 1. Cabinet and Executive Council, deliberations etc. of 1 2. Inter‑governmental relations, matter that could damage etc. 1 3. Personal information 1 4. Trade secrets, commercial and business information 1 4A. Information given to Treasurer etc. under Bank of Western Australia Act 1995 1 5. Law enforcement, public safety and property security, matter prejudicial etc. to 1 6. Deliberative processes of Government etc., matter revealing 1 7. Legal professional privilege, matter subject to 1 8. Confidential communications 1 9. State's economy, matter adversely affecting management of etc. 1 10. State's financial or property affairs, matter adversely affecting etc. 1 11. Effective operation of agencies, matter impairing etc. 1 12. Contempt of Parliament or court, matter that would be 1 13. Adoption or artificial conception information 1 13A. Abortion information 1 14. Information protected by certain statutory provisions 1 15. Precious metal transactions, information as to 1 Schedule 2 — Exempt agencies Glossary 1. Terms used 1 2. Separate agencies, which are 1 3. Courts are agencies but judges etc. are not 1 4. Documents of an agency, which are 1 5. Documents of a court, which are 1 6. Documents of units of Police Force and of Department of Corrective Services 1 7A. Documents of Authority etc. under gas pipelines access legislation 1 8. Charges for dealing with applications 1 Notes Compilation table 1 Uncommenced provisions table 1 Other notes 1 Defined terms Western Australia Freedom of Information Act 1992 An Act to provide for public access to documents, and to enable the public to ensure that personal information in documents is accurate, complete, up to date and not misleading, and for related purposes. Part 1 — Preliminary 1. Short title This Act may be cited as the Freedom of Information Act 1992. 2. Commencement The provisions of this Act come into operation on such day as is, or days as are respectively, fixed by proclamation. 3. Objects of Act (1) The objects of this Act are to — (a) enable the public to participate more effectively in governing the State; and (b) make the persons and bodies that are responsible for State and local government more accountable to the public. (2) The objects of this Act are to be achieved by — (a) creating a general right of access to State and local government documents; and (b) providing means to ensure that personal information held by State and local governments is accurate, complete, up to date and not misleading; and (c) requiring that certain documents concerning State and local government operations be made available to the public. (3) Nothing in this Act is intended to prevent or discourage the publication of information, or the giving of access to documents (including documents containing exempt matter), or the amendment of personal information, otherwise than under this Act if that can properly be done or is permitted or required by law to be done. 4. Agencies, duties of when applying Act Agencies are to give effect to this Act in a way that — (a) assists the public to obtain access to documents; and (b) allows access to documents to be obtained promptly and at the lowest reasonable cost; and (c) assists the public to ensure that personal information contained in documents is accurate, complete, up to date and not misleading. 5. Crown bound This Act binds the Crown. 6. Access rights etc. in Parts 2 and 4 do not apply to documents that are already available Parts 2 and 4 do not apply to access to documents that are — (a) available for purchase by the public or free distribution to the public; or (b) available for inspection (whether for a fee or charge or not) under Part 5 or another enactment; or (c) State archives to which a person has a right to be given access under Part 6 of the State Records Act 2000 despite this Act; or (d) publicly available library material held by agencies for reference purposes; or (e) made or acquired by an art gallery, museum or library and preserved for public reference or exhibition purposes. [Section 6 amended: No. 53 of 2000 s. 6.] 7. Access rights in Parts 2 and 4, application of to private collections If Parts 2 and 4 apply to documents in a private collection that is held by an art gallery, museum, library or other prescribed agency, the application of those Parts is subject to any limitations on access imposed by the person who lodged the collection. [Section 7 amended: No. 53 of 2000 s. 7.] 8. Access rights etc. in Parts 2 and 4, effect of on other Acts etc. (1) Access to documents is to be given under Parts 2 and 4 despite any prohibitions or restrictions imposed by other enactments (whether enacted before or after the commencement of this Act) on the communication or divulging of information, and a person does not commit an offence against any such enactment merely by complying with this Act. (2) Subsection (1) applies in respect of any enactment (whether enacted before or after the commencement of this Act) unless the enactment is expressly stated to have effect despite this Act. (3) The application of subsection (1) is subject to clause 14 of Schedule 1. (4) The application of subsection (1) is subject to the Royal Commission (Custody of Records) Act 1992. (5) A person's right to be given access to a document that is a State archive is subject to Part 6 of the State Records Act 2000. [Section 8 amended: No. 53 of 2000 s. 8.] 9. Terms used (Glossary) The Glossary at the end of this Act defines or affects the meaning of some of the words and expressions used in this Act. Part 2 — Access to documents Division 1 — Right of access and applications for access 10. Right of access to documents (1) A person has a right to be given access to the documents of an agency (other than an exempt agency) subject to and in accordance with this Act. (2) Subject to this Act, a person's right to be given access is not affected by — (a) any reasons the person gives for wishing to obtain access; or (b) the agency's belief as to what are the person's reasons for wishing to obtain access. 11. Application for access (1) A person who wishes to obtain access to one or more documents of an agency (other than an exempt agency) may make an application to the agency. (2) If the circumstances of the applicant require it, an agency has to take reasonable steps to help a person to make an access application to the appropriate agency in a manner that complies with this Act. (3) In particular, if an application does not comply with the requirements of section 12 the agency has to take reasonable steps under subsection (2) to help the applicant to change the application so that it complies with those requirements. 12. Access application, form etc. of (1) The access application has to — (a) be in writing; and (b) give enough information to enable the requested documents to be identified; and (c) give an address in Australia to which notices under this Act can be sent; and (d) give any other information or details required under the regulations; and (e) be lodged at an office of the agency with any application fee payable under the regulations. (2) The access application may request that access to the documents be given in a particular way described in section 27(1). (3) An application may be lodged by delivery by hand, post or facsimile at an office of the agency to which it is directed. (4) If an application is lodged with an agency by post it is to be regarded as having been lodged with the agency at the end of the fifth day after it was posted. (5) If an application is lodged with an agency by facsimile it is to be regarded as having been lodged with the agency on the day on which it is transmitted. Division 2 — Procedure for dealing with access applications 13. Agency's duties as to access application etc. (1) Subject to this Division, the agency has to deal with the access application as soon as is practicable (and, in any event, before the end of the permitted period) by — (a) considering the application and deciding — (i) whether to give or refuse access to the requested documents; and (ii) any charge payable for dealing with the application; and (b) giving the applicant written notice of the decision in the form required by section 30. (2) If the applicant does not receive notice under subsection (1)(b) within the permitted period the agency is taken to have refused, at the end of that period, to give access to the documents and the applicant is taken to have received written notice of that refusal on the day on which that period ended. (3) For the purposes of this section the permitted period is 45 days after the access application is received or such other period as is agreed between the agency and the applicant or allowed by the Commissioner under subsection (4) or (5). (4) On the application of the applicant, the Commissioner may reduce the time allowed to the agency to comply with subsection (1). (5) On the application of the agency, the Commissioner, on being satisfied that the agency has attempted to comply with subsection (1) within 45 days but that it is impracticable, in the circumstances, for it to comply within that time, may allow the agency an extension of time to comply with subsection (1) on such conditions as the Commissioner thinks fit. (6) If an extension of time is allowed under subsection (5) the agency has to give written notice of the extension to the applicant as soon as is practicable, and within 45 days after receiving the access application. (7) If, under subsection (2), the agency is taken to have refused access, the Commissioner may, on the application of the applicant, allow the agency an extension of time to comply with subsection (1) on such conditions (for example, reduction or waiver of charges) as the Commissioner thinks fit. (8) If an extension of time is allowed under subsection (7), subsection (2) does not have effect unless, at the end of the extended time, the applicant still has not received notice under subsection (1)(b). (9) This Division has effect subject to Division 3. 14. Ambit of application may be reduced by agreement If it is apparent from the terms of the access application that an applicant seeks information of a certain kind contained in documents of the agency, the agency may, with the agreement of the applicant, deal with the application as if it were an application relating only to those parts of those documents that contain information of that kind. 15. Document held etc. by another agency, transferring application etc. in case of (1) If the agency does not hold the requested documents but knows, or has reasonable grounds to believe, that the documents are held by another agency (other than an exempt agency), the agency has to transfer the access application to the other agency. (2) If the agency holds the requested documents but the documents originated with or were received from another agency (other than an exempt agency), and are more closely related to the functions of that other agency, the agency may transfer the access application to that other agency together with copies of the documents. (3) The transferring agency has to give the applicant written notice of the transfer without delay. (4) The notice has to clearly state the day on which, and the agency to which, the access application was transferred. (5) The agency to which the access application is transferred, or partially transferred, is to be regarded as having received the application on the day on which it was received by the transferring agency. (6) The agency to which the access application is transferred under subsection (2) is required to make decisions as to access in respect of the documents of which it receives copies but not in respect of other documents that it holds which may fall within the scope of the documents requested in the original application. (7) If subsection (1) or (2) applies to one or more but not all of the requested documents the agency is authorised to make a partial transfer under this section as if a separate access application had been made in respect of the document or documents to which the relevant subsection applies. (8) If the agency holds the requested documents but the documents originated with or were received from an exempt agency, the agency has to notify the exempt agency that the access application has been made. 16. Charge for access, calculation of etc. (1) Any charge that is, in accordance with the regulations, required to be paid by an applicant before access to a document is given, must be calculated by an agency in accordance with the following principles or, where those principles require, must be waived — (a) a charge must only cover the time that would be spent by the agency in conducting a routine search for the document to which access is requested, and must not cover additional time, if any, spent by the agency in searching for a document that was lost or misplaced; and (b) the charge in relation to time made under paragraph (a) must be fixed on an hourly rate basis; and (c) a charge may be made for the identifiable cost incurred in supervising the inspection by the applicant of the matter to which access is granted; and (d) no charge may be made for providing an applicant with access to personal information about the applicant; and (e) a charge may be made for the reasonable costs incurred by an agency in supplying copies of documents, in making arrangements for viewing documents or in providing a written transcript of the words recorded or contained in documents; and (f) a charge must not be made for producing for inspection a document referred to in section 94 or 95; and (g) a charge must be waived or be reduced if the applicant is impecunious; and (h) a charge must not exceed such amount as may be prescribed by regulation from time to time. (2) Subject to section 18, payment of a charge will not be required before the time at which the agency has notified the applicant of the decision to grant access to a document. [Section 16 amended: No. 57 of 1997 s. 62(1).] 17. Charge for access, applicant may request estimate of etc. (1) When making the access application the applicant may request an estimate of the charges that might be payable for dealing with the application. (2) If a request is made under subsection (1) the agency has to notify the applicant of its estimate, and the basis on which its estimate is made, as soon as is practicable. (3) If the agency estimates that the charges for dealing with the access application might exceed $25, or such greater amount as is prescribed, then, whether or not a request has been made under subsection (1), the agency has to notify the applicant of its estimate, and the basis on which its estimate is made, and inquire whether the applicant wishes to proceed with the application and notify the applicant of the requirement of section 19(1)(b). 18. Deposit for charges, agency may require etc. (1) The agency may, in a notice given to an applicant under section 17(3), require the applicant to pay a deposit of a prescribed amount or at a prescribed rate on account of the charges for dealing with the application. (2) If the agency has required an applicant to pay a deposit on account of the charges, the agency has to, at the request of the applicant, discuss with the applicant practicable alternatives for changing the application or reducing the anticipated charges, including reduction of the charges if the applicant waives, either conditionally or unconditionally, the need for compliance by the agency with the time limit imposed by section 13(1). (3) A notice under subsection (1) requiring an applicant to pay a deposit has to give details of — (a) the name and designation of the person who calculated the charge; and (b) the rights of review under this Act and the procedure to be followed to exercise those rights; and (c) the requirements of section 19(2)(b). (4) Further advance deposits may be required by the agency by written notice if the agency considers they are necessary to meet the charges for dealing with the application. 19. Notice given under s. 17(3) or 18, effect of on s. 13(1); applicant failing to respond to notice, effect of (1) If the agency has given the applicant a notice under section 17(3) — (a) the period commencing on the day on which the notice was given, and ending on the day on which the agency is notified that the applicant intends to proceed with the access application, is to be disregarded for the purposes of section 13(1); and (b) if intention to proceed is not notified within 30 days (or such further time as the agency allows) after the day on which the notice was given, the applicant is to be regarded as having withdrawn the access application. (2) If, under section 18(1) or (4), a notice requires the applicant to pay a deposit — (a) the period commencing on the day on which the notice was given and ending on the day on which the deposit is paid is to be disregarded for the purposes of section 13(1); and (b) if the deposit is not paid within 30 days (or such further time as the agency allows) after the day on which the notice was given, the applicant is to be regarded as having withdrawn the access application. (3) Any period during which the requirement to pay a deposit is being reviewed is to be disregarded for the purposes of subsection (2)(b). (4) If subsection (1)(b) or (2)(b) has effect, the agency has to refund to the applicant any unused portion of any advance deposit already paid in relation to the access application. 20. Agency may refuse to deal with application in certain cases (1) If the agency considers that the work involved in dealing with the access application would divert a substantial and unreasonable portion of the agency's resources away from its other operations, the agency has to take reasonable steps to help the applicant to change the application to reduce the amount of work needed to deal with it. (2) If after help has been given to change the access application the agency still considers that the work involved in dealing with the application would divert a substantial and unreasonable portion of the agency's resources away from its other operations, the agency may refuse to deal with the application. (3) If, under subsection (2), the agency refuses to deal with the access application, it has to give the applicant written notice of the refusal without delay. (4) The notice has to give details of — (a) the reasons for the refusal and the findings on any material questions of fact underlying those reasons, referring to the material on which those findings are based; and (b) the rights of review under this Act and the procedure to be followed to exercise those rights. 21. Application for personal information about applicant, consideration of If the applicant has requested access to a document containing personal information about the applicant, the fact that matter is personal information about the applicant must be considered as a factor in favour of disclosure for the purpose of making a decision as to — (a) whether it is in the public interest for the matter to be disclosed; or (b) the effect that the disclosure of the matter might have. 22. Access, when agency must give If the agency decides to give access to a document and the charges imposed for dealing with the application have been paid, the agency has to give the applicant access to the document. 23. Refusing access, grounds for (1) Subject to section 24 the agency may refuse access to a document if — (a) the document is an exempt document; or (b) the document is not a document of the agency; or (c) giving access to the document would contravene a limitation referred to in section 7. (2) The agency may refuse access to the requested documents without having identified any or all of them and without specifying the reason why matter in any particular document is claimed to be exempt matter if — (a) it is apparent, from the nature of the documents as described in the access application, that all of the documents are exempt documents; and (b) there is no obligation under section 24 to give access to an edited copy of any of the documents. (3) Subject to section 24 the agency has to refuse access to a document that is the subject of an exemption certificate. (4) If a document contains personal information and the applicant, or the person to whom the information relates, is a child who has not turned 16, the agency may refuse access to the document if it is satisfied that access would not be in the best interests of the child and that the child does not have the capacity to appreciate the circumstances and make a mature judgment as to what might be in his or her best interests. (5) If a document contains personal information and the applicant, or the person to whom the information relates, is an intellectually handicapped person, the agency may refuse access to the document if it is satisfied that access would not be in the best interests of the person. 24. Exempt matter, deleting before access given If — (a) the access application requests access to a document containing exempt matter; and (b) it is practicable for the agency to give access to a copy of the document from which the exempt matter has been deleted; and (c) the agency considers (either from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to an edited copy, the agency has to give access to an edited copy even if the document is the subject of an exemption certificate. 25. Deferring access, grounds for (1) The agency may defer giving access to a document for a reasonable period if the document — (a) is required by law to be published but is yet to be published; or (b) has been prepared for presentation to Parliament or submission to a particular person or body but is yet to be presented or submitted. (2) The applicant has to be notified under section 30(d) of the likely period for which access is to be deferred. 26. Documents that cannot be found or do not exist, notice of (1) The agency may advise the applicant, by written notice, that it is not possible to give access to a document if — (a) all reasonable steps have been taken to find the document; and (b) the agency is satisfied that the document — (i) is in the agency's possession but cannot be found; or (ii) does not exist. (2) For the purposes of this Act the sending of a notice under subsection (1) in relation to a document is to be regarded as a decision to refuse access to the document, and on a review or appeal under Part 4 the agency may be required to conduct further searches for the document. 27. Ways in which access can be given (1) Access to a document may be given to the applicant in one or more of the following ways — (a) by giving a reasonable opportunity to inspect the document; or (b) by giving a copy of the document; or (c) in the case of a document from which sounds or visual images can be reproduced, whether or not with the aid of some other article or device — by making arrangements for the sounds or visual images to be heard or viewed; or (d) in the case of a document from which words can be reproduced in the form of sound — by giving a written transcript of the words recorded in the document; or (e) in the case of a document in which words are contained in the form of shorthand writing or in encoded form —by giving a written transcript of the words contained in the document; or (f) in the case of a document from which words can be reproduced in the form of a written document — by giving a written document so reproduced; or (g) in the case of electronically, mechanically or magnetically stored information — by giving a written expression of the information in the form in which it is commonly available in the agency, or if there is no such common form, then in a form no less comprehensible than could be made available to the persons in the agency. (2) If the applicant has requested that access to a document be given in a particular way the agency has to comply with the request unless giving access in that way — (a) would interfere unreasonably with the agency's other operations; or (b) would damage or harm the document or would be inappropriate because of the physical nature of the document; or (c) would involve an infringement of copyright belonging to a person other than the State, in which case access may be given in some other way. (3) If the applicant has requested that access to a document be given in a particular way and access is given in some other way, the applicant is not required to pay a charge in respect of the giving of access that is greater than the charge that the applicant would have been required to pay if access had been given in the way that was requested. (4) This section does not prevent the agency from giving access to a document in any way agreed on between the agency and the applicant. 28. Medical and psychiatric information about applicant, giving access to If — (a) a document to which the agency has decided to give access contains information of a medical or psychiatric nature concerning the applicant; and (b) the principal officer of the agency is of the opinion that disclosure of the information to the applicant may have a substantial adverse effect on the physical or mental health of the applicant, it is sufficient compliance with this Act if access to the document is given to a suitably qualified person nominated in writing by the applicant and the agency may withhold access until a person who is, in the opinion of the agency, suitably qualified is nominated. 29. Personal information about applicant, agency's duties when giving access to If the agency gives the applicant access to personal information about the applicant the agency has to take reasonable steps to — (a) satisfy itself of the identity of the applicant; and (b) ensure that only the applicant or the applicant's agent, nominated in writing, receives the document. 30. Notice under s. 13(1)(b) of decision, form etc. of The notice that the agency gives the applicant under section 13(1)(b) has to give details, in relation to each decision, of — (a) the day on which the decision was made; and (b) the name and designation of the officer who made the decision; and (c) if the decision is that a document is an exempt document and that access is to be given to a copy of the document from which exempt matter has been deleted under section 24 — (i) the fact that access is to be given to an edited copy; and (ii) the reasons for classifying the matter as exempt matter and the findings on any material questions of fact underlying those reasons, referring to the material on which those findings were based; and (d) if the decision is that access to a document is to be deferred — the reasons for the deferral and, if applicable, the period for which access is likely to be deferred; and (e) if the decision is to give access to a document in the manner referred to in section 28 — the arrangements to be made for giving access to the document; and (f) if the decision is to refuse access to a document — the reasons for the refusal and the findings on any material questions of fact underlying those reasons, referring to the material on which those findings were based; and (g) if the decision is that the applicant is liable to pay a charge to the agency — the amount of the charge and the basis on which the amount was calculated; and (h) the rights of review and appeal (if any) under this Act and the procedure to be followed to exercise those rights. 31. Certain exempt matter (Sch. 1 cl. 1, 2 or 5), giving information about existence etc. of (1) Nothing in this Act requires the agency to give information as to the existence or non‑existence of a document containing matter that would be exempt matter under clause 1, 2 or 5 of Schedule 1. (2) If the access application relates to a document that includes, or would if it existed include, exempt matter of a kind referred to in subsection (1), the agency may give written notice to the applicant that the agency neither confirms nor denies the existence, as a document of the agency, of such a document but that, assuming the existence of such a document, it would be an exempt document and, where such a notice is given — (a) section 30 applies as if the decision to give such a notice were a decision referred to in that section; and (b) for the purposes of this Act, the decision is to be regarded as a refusal of access to the document because the document would, if it existed, be an exempt document. Division 3 — Consultation with third parties 32. Personal information about third party, when access to may be given (1) This section applies to a document that contains personal information about an individual (the third party) other than the applicant. (2) The agency is not to give access to a document to which this section applies unless the agency has taken such steps as are reasonably practicable to obtain the views of — (a) the third party; or (b) if the third party is dead, his or her closest relative, as to whether the document contains matter that is exempt matter under clause 3 of Schedule 1. (3) If the third party, or the closest relative of a dead third party, is a child who has not turned 16 and who, in the agency's opinion, does not have the capacity to appreciate the circumstances and make a mature judgment as to the nature and significance of the document, the views of the child's guardian, or the person who has custody or care and control of the child, may be obtained for the purposes of subsection (2). (4) If the third party, or the closest relative of a dead third party, is an intellectually handicapped person, the views of the person's closest relative or guardian may be obtained for the purposes of subsection (2). (5) Where the views of a person are obtained under subsection (2)(b) that person is to be regarded as being the third party for the purposes of Division 5 and Part 4. (6) This section does not apply if access is given to a copy of the document from which the personal information referred to in subsection (1) has been deleted under section 24. 33. Commercial etc. information of third party, when access to may be given (1) This section applies to a document that contains — (a) information concerning the trade secrets of; or (b) information (other than trade secrets) that has a commercial value to; or (c) any other information concerning the business, professional, commercial or financial affairs of, a person (the third party) who is not the applicant. (2) The agency is not to give access to a document to which this section applies unless the agency has taken such steps as are reasonably practicable to obtain the views of the third party as to whether the document contains matter that is exempt matter under clause 4 of Schedule 1. (3) An agency is not a third party for the purposes of this Part or Part 4. (4) This section does not apply if access is given to a copy of the document from which the information referred to in subsection (1) has been deleted under section 24. 34. Consultation under s. 32 or 33, procedure after (1) If — (a) the agency obtains the views of a third party in relation to a document under section 32 or 33; and (b) those views are that the document contains matter that is exempt matter under clause 3 or 4 of Schedule 1; and (c) the agency decides to give access to the document, the agency has to — (d) give the third party written notice of the decision without delay; and (e) defer giving access to the document until the decision is final. (2) The notice that the agency gives under subsection (1)(d) has to give details of — (a) the day on which the decision was made; and (b) the name and designation of the person who made the decision; and (c) the reasons for the decision to give access despite the views of the third party and the findings on any material questions of fact underlying those reasons, referring to the material on which those findings were based; and (d) the rights of review and appeal under this Act and the procedure to be followed to exercise those rights. (3) If the agency has given a notice to a third party under subsection (1)(d) in relation to a document, the notice that the agency gives the applicant under section 13(1)(b) has to inform the applicant — (a) that a third party believes that the document is an exempt document; and (b) that access to the document will be deferred until the decision is final. (4) For the purposes of this section an agency's decision to give access to a document is final if — (a) the time prescribed by Division 5 of this Part or Division 3 of Part 4 for third parties to lodge applications for review of the agency's decision, or make complaints against the agency's decision, has elapsed and no application or complaint has been made by a third party; or (b) the time prescribed by Division 3 of Part 4 for third parties to make complaints against a decision made under Division 5 of this Part confirming the agency's decision has elapsed and no complaint has been made by a third party; or (c) the time prescribed under Division 5 of Part 4 for lodging an appeal arising out of a decision under Division 3 of Part 4 relating to the agency's decision, or to a review of the agency's decision, has elapsed and no appeal has been lodged; or (d) on the determination of an appeal under Division 5 of Part 4 the agency's decision has been confirmed. 35. Consultation under s. 32 or 33, Commissioner may waive (1) The agency may apply to the Commissioner for approval to make its decision on whether to give access to a document without complying with section 32 or 33, and the Commissioner may give approval on being satisfied that — (a) it would be unreasonable to require the views of third parties to be obtained having regard to the number of third parties that would have to be consulted; and (b) the document does not contain matter that is exempt matter under clause 3 or 4 of Schedule 1. (2) The agency may proceed in accordance with approval given under subsection (1). Division 4 — Exemption certificates 36. Premier may issue certificate (1) The Premier may sign an exemption certificate stating that a document mentioned in the certificate contains matter that is exempt matter under a specified provision of clause 1 or 2 of Schedule 1. (2) An exemption certificate may be issued in a form that neither confirms nor denies the existence of a document but states that if it did exist it would contain matter that would be exempt matter under a specified provision of clause 1 or 2 of Schedule 1. 37. Effect of certificate (1) An exemption certificate establishes, without the need for further proof, that the document mentioned in the certificate contains matter that is exempt matter under the provision mentioned in the certificate, or would, if it existed, contain matter that would be exempt matter under the provision so mentioned. (2) Subsection (1) does not apply to section 77, 85(2) or 87(2). 38. Duration of certificate (1) An exemption certificate ceases to have effect at the end of 2 years after it is signed unless — (a) it is withdrawn by the Premier; or (b) it ceases to have effect under section 77; or (c) it ceases to apply by reason of an order under section 87(2), before the end of that period. (2) Subsection (1), other than paragraph (c), does not prevent the Premier from signing a further exemption certificate in respect of the same document. Division 5 — Internal review of decisions as to access 39. Review of decision under this Part, right to (1) A person who is aggrieved by a decision made by an agency under this Part in relation to an access application has a right to have the decision reviewed by the agency. (2) A person is aggrieved by a decision — (a) if the person is the access applicant and the effect of the decision is to — (i) give access to an edited copy of a document; or (ii) refuse to deal with the access application; or (iii) refuse access to a document; or (iv) defer the giving of access to a document; or (v) give access to a document in the manner referred to in section 28 or withhold access under that section; or (vi) impose a charge, or require a deposit, that the applicant considers to be unreasonable; or (b) if the person is a third party whose views were or should have been obtained under section 32 or 33, and the decision conflicts with the person's views. (3) Review under this Division is not available in respect of — (a) a decision made by an agency's principal officer; or (b) a decision made on an application for review under this Division. 40. Application for review (1) An application for review has to — (a) be in writing; and (b) give particulars of the decision which the aggrieved person wishes to have reviewed; and (c) give an address in Australia to which notices under this Act can be sent; and (d) give any other information or details required under the regulations; and (e) be lodged at an office of the agency. (2) An aggrieved person may lodge an application for review within 30 days after being given written notice of the decision. (3) If the application for review is made by the access applicant the principal officer of the agency may allow the application to be lodged after the period mentioned in subsection (2) has expired. 41. Who is to deal with application for review An application for review of a decision is not to be dealt with by the person who made that decision or by a person who is subordinate to that person. 42. How application for review to be dealt with An application for review has to be dealt with as if it were an access application and the provisions of Divisions 2, 3 and 4 apply accordingly. 43. Decision can be confirmed, varied or reversed on review (1) On an application for review the agency may decide to confirm, vary or reverse the decision under review. (2) If the agency fails to give notice of its decision on the application for review within 15 days after it is lodged, or such longer period as is agreed between the agency and the access applicant, the agency is to be taken to have decided to confirm the decision under review. 44. No charge for review No application fee or other charge is payable in respect of an application for review under this Division. Part 3 — Amendment of personal information Division 1 — Applications for amendment 45. Right to apply for information to be amended (1) An individual (the person) has a right to apply to an agency for amendment of personal information about the person contained in a document of the agency if the information is inaccurate, incomplete, out of date or misleading. (2) A dead person's closest relative has a right to apply to an agency for amendment of personal information about the dead person and this section has effect as if the information were information about the closest relative. (3) If the circumstances of the person require it, the agency has to take reasonable steps to help the person make an application for amendment in a manner that complies with this Act. (4) In particular, if an application for amendment does not comply with the requirements of section 46 the agency has to take reasonable steps under subsection (3) to help the person to change the application so that it complies with those requirements. (5) This section does not apply if another enactment provides a means or procedure by which the person can have the information amended. 46. Application for amendment, form etc. of (1) The application for amendment has to — (a) be in writing; and (b) give enough details to enable the document that contains the information to be identified; and (c) give details of the matters in relation to which the person believes the information is inaccurate, incomplete, out of date or misleading; and (d) give the person's reasons for holding that belief; and (e) give details of the amendment that the person wishes to have made; and (f) give an address in Australia to which notices under this Act can be sent; and (g) give any other information or details required under the regulations; and (h) be lodged at an office of the agency. (2) For the purposes of subsection (1)(e) the application has to state whether the person wishes the amendment to be made by — (a) altering information; (b) striking out or deleting information; (c) inserting information; (d) inserting a note in relation to information, or in 2 or more of those ways. 47. Document held etc. by another agency, transferring application in case of (1) If the agency does not hold the document containing the information but knows that the document is held by another agency, the agency may transfer the application for amendment to the other agency. (2) If the agency holds the document containing the information but the document originated with or was received from another agency, and is more closely related to the functions of that other agency, the agency may transfer the application for amendment to that other agency together with a copy of the document. (3) The transferring agency is to give the person written notice of the transfer without delay. (4) The notice is to clearly state the day on which, and the agency to which, the application was transferred. (5) The agency to which the application is transferred is to be regarded as having received the application on the day on which it was received by the transferring agency. 48. Amending information, ways of (1) If the agency decides to amend the information it may make the amendment by — (a) altering information; or (b) striking out or deleting information; or (c) inserting information; or (d) inserting a note in relation to information, or in 2 or more of those ways. (2) If the agency inserts a note in relation to information the note has to — (a) give details of the matters in relation to which the information is inaccurate, incomplete, out of date or misleading; and (b) if the information is incomplete or out of date — set out whatever information is needed to complete the information or bring it up to date. (3) The agency is not to amend information under subsection (1) in a manner that — (a) obliterates or removes the information; or (b) results in the destruction of a document containing the information, unless the Commissioner has certified in writing that it is impracticable to retain the information or that, in the opinion of the Commissioner, the prejudice or disadvantage that the continued existence of the information would cause to the person outweighs the public interest in maintaining a complete record of information. (4) Before information is amended under subsection (1) in a manner that — (a) obliterates or removes the information; or (b) results in the destruction of a document containing the information, and that contravenes the State Records Act 2000, a record keeping plan made under that Act or the archives keeping plan made under that Act, the Commissioner shall provide the State Records Commission with a copy of the certificate issued by the Commissioner under subsection (3). [Section 48 amended: No. 53 of 2000 s. 9.] 49. Decision on application, notice of (1) The agency has to give the person written notice of its decision on the application for amendment. (2) Section 13 applies with any necessary modifications to a notice under subsection (1) except that the references to 45 days are to be read as references to 30 days. (3) Section 30(a) and (b) apply to a notice under subsection (1). (4) If the agency decides to amend the information the notice has to give details of the amendment made. (5) If the agency decides not to amend the information in accordance with the application the notice has to give details of — (a) the reasons for the decision and the findings on any material questions of fact underlying those reasons, referring to the material on which those findings were based; and (b) the rights of review and appeal under this Act and the procedure to be followed to exercise those rights; and (c) the right to request that a notation or attachment be made to the information and the procedure to be followed to exercise that right. (6) If the application was transferred to the agency under section 47 and the agency decides to amend the information, the agency has to give a copy of the notice to the transferring agency. 50. If application for amendment refused, applicant may request notation etc. disputing accuracy of information etc. (1) If the agency decides not to amend the information in accordance with the application the person may, in writing, request the agency to make a notation or attachment to the information — (a) giving details of the matters in relation to which the person claims the information is inaccurate, incomplete, out of date or misleading; and (b) if the person claims the information is incomplete or out of date — setting out the information that the person claims is needed to complete the information or bring it up to date. (2) A request may be made under this section whether or not the person has taken steps to have the agency's decision reviewed under Part 4. (3) The agency has to comply with the request unless it considers that the notation or attachment that the person has requested to be made to the information is defamatory or unnecessarily voluminous. (4) If the agency decides not to comply with the request it has to give the person written notice of its decision giving details of — (a) the reasons for the decision and the findings on any material questions of fact underlying those reasons, referring to the material on which those findings were based; and (b) the rights of review under this Act and the procedure to be followed to exercise those rights. (5) This section does not prevent the agency from making the requested notation or attachment in an edited or abbreviated form, but the making of an edited or abbreviated notation or attachment does not constitute compliance with the request for the purposes of subsection (4). 51. Claim that information is inaccurate etc., agency to give notice of in some cases (1) If after a request is made under section 50 the agency discloses the information to another person (including another agency) the agency has to give that other person a statement that a claim has been made under this Act that the information is inaccurate, incomplete, out of date or misleading. (2) If a notation or attachment has been made under section 50 particulars of the notation or attachment have to be included in or attached to the statement given under subsection (1). 52. Reasons for not amending information, agency may add to notation This Division does not prevent the agency from adding to a notation or attachment made under section 50 the agency's reasons for deciding not to amend the information in accordance with the application, or from including those reasons in, or attaching them to, a statement given under section 51(1). 53. No charge for application or request No fee or other charge is payable in respect of an application or request under this Division. Division 2 — Internal review of decisions as to amendment of information 54. Review of decision under Div. 1, right to etc. (1) If under Division 1 an agency decides — (a) not to amend information in accordance with an application for amendment; or (b) not to comply with a request to make a notation or attachment to information, the applicant for amendment has a right to have the decision reviewed by the agency. (2) Sections 39(3), 40, 41, 43 and 44 apply with any necessary modifications to an application for review under this Division. (3) An application for review is to be dealt with as if it were an application for amendment or a request for a notation or attachment to be made to information, as the case may require, and the provisions of Division 1 apply accordingly. Part 4 — External review of decisions; appeals Division 1 — Information Commissioner 55. Office established etc. (1) An office of Information Commissioner is created. (2) The office is not an office in the Public Service. 56. Appointment, terms and conditions (1) The Commissioner is to be appointed by the Governor. (2) Subject to this Division, the Commissioner holds office for a period, not exceeding 7 years, fixed by the instrument of appointment and is eligible for one or more further appointments. (3) Subject to the Salaries and Allowances Act 1975, the Commissioner is entitled to be paid such remuneration as is determined by the Governor. (3a) Remuneration paid to the Commissioner under subsection (3) is to be charged to the Consolidated Account 1 and this subsection appropriates the Consolidated Account 1 accordingly. (4) The rate of remuneration of the Commissioner is not to be reduced during a term of office without the Commissioner's consent. (5) The Commissioner is entitled to such leave of absence as the Governor determines. (6) Subject to this Division the Governor may determine other terms and conditions of service (if any) that apply to the Commissioner. [Section 56 amended: No. 49 of 1996 s. 54.] 57. Resignation The Commissioner may resign from office by a signed notice of resignation addressed to the Governor and the resignation takes effect on the day on which the notice is received by the Governor or on such later day as is specified in the notice. 58. Suspension and removal (1) If the Governor is satisfied that the Commissioner — (a) is physically or mentally incapable of performing the duties of the office of Commissioner; or (b) has shown incompetence or neglect in performing those duties; or (c) has been guilty of misbehaviour, the Governor may suspend the Commissioner from office. (2) In subsection (1)(c) misbehaviour includes conduct that renders the Commissioner unfit to hold office as Commissioner whether or not the conduct relates to any function of the office. (3) After being suspended from office under subsection (1) the Commissioner is entitled to be restored to office unless — (a) a statement of the grounds of suspension is laid before each House of Parliament during the first 7 sitting days of that House following the suspension; and (b) each House of Parliament, during the session in which the statement is so laid, and within 30 days of it being so laid, passes an address praying for the removal of the Commissioner from office. (4) If the Commissioner is suspended from office under subsection (1) and is not restored to office under subsection (3), the office of Commissioner becomes vacant. 59. Acting Information Commissioner, appointing etc. (1) The Governor may appoint a person to act in the office of the Commissioner in such cases or in the circumstances set out in this section, and the person so appointed is to be known as the Acting Information Commissioner. (2) An appointment may be made under this section — (a) when the Commissioner is on leave of absence, or is unable to perform the functions of the office of Commissioner, or is absent from the State; or (b) when the Commissioner has been suspended; or (c) when the office of Commissioner is vacant, but an Acting Commissioner is not to so act for a period exceeding 12 months. (3) The Acting Commissioner, while so acting, may exercise the functions of the Commissioner, and anything done by the Acting Commissioner in so exercising those functions has the like effect as if it were done by the Commissioner. (4) The Acting Commissioner is entitled to such remuneration and allowances and leave of absence as the Governor may determine. (5) An appointment under this section — (a) may be made at any time and may be terminated at any time by the Governor; (b) may be expressed to have effect only in the circumstances specified in the instrument of appointment. 60. Oath or affirmation of office (1) Before commencing to perform the functions of the office of Commissioner or Acting Commissioner a person has to take an oath or make an affirmation that he or she will faithfully and impartially perform the functions of the office, and that he or she will not, except in accordance with this Act, divulge any information received under this Act. (2) The oath or affirmation is to be administered by the Speaker of the Legislative Assembly. (3) If the office of Speaker is vacant or the Speaker is absent or otherwise unable to administer the oath or affirmation, the President of the Legislative Council is to administer the oath or affirmation. (4) If subsections (2) and (3) do not enable the oath or affirmation to be administered, it is to be administered by a person appointed by the Governor for the purpose. 61. Staff, appointment of etc. (1) The Governor may, on the recommendation of the Commissioner, appoint such staff as are necessary for the performance of the Commissioner's functions. (2) Subject to this Act the terms and conditions of service of a person appointed under subsection (1) are those determined by the Governor. (3) Part 3 of the Public Sector Management Act 1994 does not apply to a person appointed under subsection (1). (4) The Commissioner may by arrangement with the Minister concerned and, if appropriate, the employing authority, within the meaning of the Public Sector Management Act 1994, of the officer or employee, make use, either full‑time or part‑time, of the services of any officer or employee employed in the Public Service or in a State instrumentality or otherwise in the service of the Crown in right of the State. (5) Before commencing to carry out his or her duties under this Act a person who is appointed under subsection (1), or whose services are used under subsection (4), has to take an oath or make an affirmation that he or she will faithfully and impartially perform those duties, and that he or she will not, except in accordance with this Act, divulge any information received under this Act. (6) The oath or affirmation has to be administered by the Commissioner. [Section 61 amended: No. 32 of 1994 s. 19.] 62. Commissioner and staff, additional provisions about (1) In this section relevant office means the office of Commissioner or an office or position under section 61(1). (2) If a person was a contributor within the meaning of the Superannuation and Family Benefits Act 1938 2 immediately before being appointed to a relevant office the person may continue to be a contributor under that Act after being appointed. [(3) deleted] (4) If a person occupied an office in the Public Service immediately before being appointed to a relevant office, the person retains existing and accruing entitlements in respect of leave of absence as if service in the relevant office were a continuation of service in the office in the Public Service. (5) If a person occupied an office in the Public Service immediately before being appointed to the office of Commissioner, the person is entitled to be appointed to an office in the Public Service, not lower in classification and salary than the office which the person occupied if — (a) the person ceases to hold office as Commissioner on the completion of a periodical appointment; and (b) at that time the person is eligible to occupy an office in the Public Service. (6) A person who ceases to hold a relevant office and becomes the holder of an office in the Public Service retains existing and accruing entitlements in respect of leave of absence as if service in the Public Service were a continuation of service in the relevant office. [Section 62 amended: No. 57 of 1997 s. 62(2).] Division 2 — Functions of Information Commissioner 63. Functions (1) The main function of the Commissioner is to deal with complaints made under this Part about decisions made by agencies in respect of access applications and applications for amendment of personal information. (2) The functions of the Commissioner also include — (a) imposing reductions of time under section 13(4) and allowing extensions of time under section 13(5) or (7); (b) giving approvals under section 35(1); (c) issuing certificates under section 48(3); (d) ensuring that agencies are aware of their responsibilities under this Act; (e) ensuring that members of the public are aware of this Act and their rights under it; (f) providing assistance to members of the public and agencies on matters relevant to this Act. (3) If in dealing with a complaint the Commissioner forms the opinion that there is evidence that an officer of an agency has been guilty of a breach of duty, or of misconduct, in the administration of this Act, the Commissioner may take such steps as he or she considers appropriate to bring the evidence to the notice of — (a) if the person is the principal officer of the agency but is not a Minister — the Minister responsible for the agency; or (aa) if the person is the principal officer of a contractor or subcontractor — the Minister to whom the administration of the Court Security and Custodial Services Act 1999, the Declared Places (Mental Impairment) Act 2015 or the Prisons Act 1981 is committed, as is relevant to the case; or (b) if the person is a Minister — the Parliament; or (c) in any other case — the principal officer of the agency. [Section 63 amended: No. 43 of 1999 s. 20; No. 47 of 1999 s. 12; No. 4 of 2015 s. 86(2) ; No. 10 of 2023 s. 410.] 64. Powers The Commissioner has power to do all things that are necessary or convenient to be done for or in connection with the performance of the Commissioner's functions. Division 3 — Complaints and procedure for dealing with them 65. Complaint against agency's decision, making (1) A complaint may be made against an agency's decision — (a) to give access to a document; or (b) to give access to an edited copy of a document; or (c) to refuse to deal with an access application; or (d) to refuse access to a document; or (e) to defer the giving of access to a document; or