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Week 11 Access to information Not on the Exam (FOI Act 6 Key…
Week 11
Access to information
Not on the Exam
importance of FOI legislation
Guide to the Freedom of Information Act 1982 (2011)
confer a legal right on members of the public to access information held by the government
three broad reasons
why FOI legislation is important
FOI enhances the transparency and accountability of policy making, administrative decision making and government service delivery.
a community that is better informed can participate more effectively in the nation’s democratic processes.
FOI provides a mechanism for individuals to see what information is held about them on government files, and to seek to correct that information if they consider it wrong or misleading
More recently, a fourth reason for FOI legislation has emerged
There is greater recognition that information gathered by government at public expense is a national resource and should be available more widely to the public.
FOI Act
6 Key principles
Guide to the
Freedom of Information Act 1982
(2011)
• A person who is denied access to a document can appeal against the decision of the agency or minister to an independent tribunal, which can review the merits of that decision and make a fresh determination that is binding on the agency or minister (except, prior to 2009, when a conclusive certificate was in place).
• At all stages of the FOI processing and review process the agency or minister bears the onus of establishing that their decision is justified
• The right of access to government documents is a legal right.
• Agencies must publish information that explains their role and work, such as their decision making powers, organisational structure, categories of documents, FOI procedures, and policies and guidelines applied in making decisions that affect members of the public
• All members of the public enjoy an equal right of access to government documents
• An agency or minister may grant access to any document, even an exempt document, unless prevented by a secrecy provision in another statute from doing so
Freedom of Information Act 1982
(Cth)
s 3 Object
s 11 Provides a legally enforceable right of every person to documents in the possession of agencies and Ministers
s 31B exempt documents for the purposes of” the Act may be denied by an agency or minister:
see Week 11 handout notes for extensive list Section 3.4 page 5
Conditionally exempt documents on the ground of public interest
“unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest”: s 11 A(5)
see Week 11 handout notes for extensive list Section 3.4.1 page 6
Exempt agencies
s 7(1) and Schedule 2, Part I
• Aboriginal Land Councils and Land Trusts
• Auditor-General
• Australian Government Solicitor
• Australian Secret Intelligence Service
• Australian Security Intelligence Organisation
• Inspector-General of Intelligence and Security
• National Workplace Relations Consultative Council
• Office of National Assessments
• Parliamentary Budget Office
• Parliamentary Budget Officer
Government agencies are also exempt from the operation of the FOI Act in relation to certain documents: s 7(2A).
Courts
s 5 Act does not apply to any request for access to a document of the court
unless
the document relates to matters of an administrative nature.”
Kline v Official Secretary to the Governor-General
(2013) 249 CLR 645.
Gageler J; 'Documents of an administrative nature are not subject to the FOI Act. Matters of an administrative nature refers to matters distinct from but incidental to the exercise of performance of substantive power or functions in the sense of providing logistical support for the exercise or performance of those substantive powers or functions to be able o occur.'
Conflicting Themes
on the one hand, of exposing government processes and activities to increased public information and scrutiny through public access of government information, and the need, on the other hand, to shield the discussions and deliberations of government officers and Ministers from public scrutiny to facilitate frankness and candour.
greater transparency can mean that the government is more refrained in the information that will be captured in recordings due to the potential additional scrutiny
Kline v Official Secretary to the Governor-General
(2013) 249 CLR 645.
The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increased public participation and scrutiny, by making information freely available to persons on request, and exempting other government processes and activities from public participation and scrutiny, in order to secure a competing or conflicting public interest in non-disclosure.