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Freedom of Information Amendment (Open Government) Bill 2000 [2002]

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1998-1999-2000

 

The Parliament of the Commonwealth of Australia

 

 

 

 

 

 

 

 

The Senate

 

 

 

 

 

Freedom of Information Amendment (Open Government) Bill 2000

 

 

 

 

Explanatory Memorandum

 

 

 

 

Circulated by authority of Senator Murray



General Outline

 

The Freedom of Information Act has been operating since 1982.  In 1995, the Australian Law Reform Commission and the Administrative Review Council presented a report to the government of the day, entitled Open Government: a review of the Federal Freedom of Information Act 1982 .

 

This bill implements many of the recommendations contained in that report in the absence of any action by government to amend the Act.

 

 

Financial Implications

 

The financial implications of the measures contained in this bill have not been quantified.



This explanatory memorandum takes the form of a table which identifies the recommendation number, the subject of the recommendation, the relevant section of the Act, and the item or items in the bill which give effect to the recommendation.

 

Recommendation No.

Subject

Section

Amendment(s)

1

Amend objects clause to provide right of access to increase accountability

3

Item 1

2

Delete paragraph 3(1)(a)

3

Item 1

3

Delete reference in objects clause to limitations on general right of access

3

Item 1

4

Objects clause to acknowledge that government information is a national resource

3

Item 1

5

Object clause to distinguish between right of access to personal information and general right of access

3

Item 1

6

The fact that a document contains personal information of the applicant to be taken into account in access decisions

11A

41(3)

Item 8

Item 43

10

Extension of indemnity to authorised officer who releases a document other than under the FOI Act if it would not have been an exempt document

91(1AA)

Item 96

11

Extension of indemnity to an authorised officer for bona fide exercise of discretion not to claim exemption

91(D)

Item 97

14

Act to apply to documents that are less than 30 years old

12(2)

Item 9

16

FOI Commissioner to consult Privacy Commissioner before issuing guidelines on access to and amendment of applicant’s personal information

66K

Item 95

18

Create statutory office of FOI Commissioner

Part VIA

Items 3, 95

19

Functions of FOI Commissioner

66J-66N

Item 95

20

FOI Commissioner to have powers to require agencies to provide statistics on their FOI administration

66Q, 66R

Item 95

21

Agency to supply applicant with copy of relevant guidelines where exemption claimed

66L

Item 95

22

Agencies and AAT to take guidelines into account

66L

Item 95

23

Agencies to make information about how to use the FOI Act available in plain English

9A

Item 7

24

FOI Commissioner to encourage agencies to make use of information technology to enhance access

66M

Item 95

25

FOI Commissioner to monitor agency practices and pricing policies in relation to sale of documents

66R

Item 95

26

Standing arrangements for consultation between FOI Commissioner and Director-General of Archives, Chief Executive Officer of Office of Government Online, Ombudsman and Privacy Commissioner

66J

Item 95

27

Review of role of FOI Commissioner

66T

Item 95

28

Amend definition of document to include data

4

Item 4

30

FOI Commissioner to oversee compliance by agencies with sections 8 and 9

66J, 66R

Item 95

31

Time limit for processing FOI requests to be reduced to 14 days

15

 

30A

31

51D

56

Items 11, 12, 13

Items 23, 24

Item 26

Item 53

Items 62, 63 subclause 2(2)

32

Redraft section 24 to emphasise importance of agencies consulting with applicants about requests

24

Item 14

33

Repeal subsection 24(5)

24

Item 14

34

Remit application fee if a request refused under section 24 is not challenged

24(7)

Item 14

35

Agencies may refuse to process repeat requests where applicant already refused access, if no reasonable grounds exist for making repeat request

24AA

Item 15

36

FOI Commissioner to monitor quality of agencies’ statements of reasons and to name poor performances in annual report

66R

Item 95

37

FOI Commission to issue guidelines on application of public interest test

66K

Item 95

38

Government embarrassment to be irrelevant to access decision

4

Item 6

39

Section 26 to be amended to require agency to specify factors taken into account in applying public interest test

26

Item 17

40A

Regulations to prescribe 2 years as maximum duration of conclusive certificates

36A

Item 38

41

FOI Commissioner to monitor use of conclusive certificates and include information in annual report

66R

Item 95

42

“Neither confirm nor deny” response not to be available in respect of documents for which exemption might be claimed under section 33A

25

Item 16

43

FOI Commissioner to educate agencies about correct use of section 25

66K

Item 95

44

Exemption in section 33 for information communicated in confidence by an international organisation to be subject to a public interest test

33

Item 27

45

Section 33A to be amended to remove provision for conclusive certificate

33A and cross references

Items 28, 54, 55, 66, 67, 69, 71, 72, 73, 74, 75, 78, 80, 81, 89

46

Paragraph 34(1)(a) to apply only to documents created for submission to Cabinet for consideration

34

Item 29

47

Paragraph 34(1)(d) not to apply to a document disclosing a Cabinet decision if decision has been officially published

34

Item 30

48

“Officially published” to be defined

34

Item 32

49

Cabinet documents to be exempt for only 20 years after creation

34

Item 31

50

Repeal section 35

35 and cross references

Items 33, 54, 55, 66, 67, 72, 73, 74, 76, 78

51

Section 36 to be retitled

36

Item 34

52

Section 36 to be amended to exclude purely statistical information

36

Item 35

53A

Provision for a conclusive certificate not to be available under section 36

36 and cross references

Items 34, 36, 37, 66, 68, 70, 72, 74, 75, 77, 79, 82, 83, 84, 88, 90, 92

54

Amend section 37 to protect the security of places of lawful detention

37

Item 39

55

Section 37 to be amended to provide that specified documents are not exempt if their disclosure would be in the public interest

37

Item 40

56

Section 40 to be amended to protect internal or administrative investigations

40

Item 42

57

Repeal paragraph 40(1)(e)

40

Item 42

58

Repeal section 44

44

Item 47

59

Redraft section 41 to establish a link with Information Privacy Principles

41

Item 43

60

FOI Commissioner to consult Privacy Commissioner about guidelines on the interpretation and application of section 41

66K

Item 95

61

Section 41 to provide for regard to be had to any special relationship between the applicant and the third party

41

Item 43

62

Content of guidelines on consultation

66K

Item 95

63

Disclosures under section 41 to be made so as to minimise any risk to the applicant

41

Items 43, 57

64

Repeal subsection 41(4)

41

Item 43

66

Redefine the scope of section 42 (legal professional privilege)

42

Item 44

67

Section 42 not to apply if client has waived legal professional privilege

42

Item 44

68

Section 43 to apply to competitive commercial activities of agencies

43

Item 45

69

Section 47A to be repealed

47A

Item 49

70

Section 38 to be repealed

38

Items 41, 125

71

Section 43A to be repealed

43A

Items 46, 126

72

Section 47 to be repealed

47

Item 48

73

Parliamentary Departments to be subject to the FOI Act

4

13

Items 2, 5

Item 10

74

Intelligence agencies to remain in Part I of Schedule 2; other agencies to demonstrate to the Attorney-General the need for continuing exclusion or to be automatically removed after 12 months

Part 1 of Schedule 2

Subclause 2(4)

Items 102, 103, 104, 105

75

Competitive commercial activities of agencies to be removed from Part II of Schedule 2; other agencies to demonstrate to the Attorney-General the need for continuing exemption or to be automatically removed after 12 months

Part II of Schedule 2

Subclause 2(5)

Items 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122

76

Repeal Part III of Schedule 2

Part III of Schedule 2

Item 123

77

Remove words from section 48

48

Item 50

79

Irrelevance to be included as a ground for amendment or annotation of personal information

48

Item 51

80

Criterion of reasonableness to be included in section 50 in relation to amendment of records

50

Item 52

81

FOI Commissioner to issue guidelines about amendment of records by deletion

66K

Item 95

83

Internal review not to be a prerequisite for AAT review

55

Item 58

85

AAT may require production to it of exempt documents at any time after agency must have complied with section 37 of AAT Act

64

Items 85, 86

86

AAT not to disclose documents claimed to be exempt

64

Item 91

87

Access to an applicant’s personal information to be free of charge

94

Item 99

88

Charges to be imposed only in respect of released documents and in accordance with a scale of fees set out by the FOI Commissioner

94 and consequential amendments

Items 18, 19, 56, 59, 60, 61, 98, 101

90

FOI Commissioner to set photocopying and transcribing charges

94

Item 98

91

Fees not to apply to supervision of inspection of documents

94 Regulations

Items 100, 126

92

Abolish fee for internal review

30A Regulations

Items 21, 126

93

Agencies to have a general discretion to remit fees

30A

Item 22

94

Agencies to have a general discretion to waive or reduce charges

29

Item 20

95

FOI Commissioner to publicise section 66

66N

Item 95

96

AAT to have power to recommend applicants’ costs be paid by the Commonwealth in certain circumstances

66

Items 93, 94

102

Arrangements in respect of contracting out

66R

Item 95

 

 

Other amendments

 

Topic

Section

Amendment

The AAT to have a discretion to grant access to a document containing exempt material under section 43 if, after consulting the Auditor-General, the AAT believes it is in the public interest to do so

58

Items 64, 65