Explanatory Memorandum
Circulated By Authority of the Cabinet Secretary, Senator the Hon Joe LudwigSchedule 2 - Publication of information
Freedom of Information Act 1982
Item 1 - subsection 4(1)
This item inserts a definition that is related to the amendment proposed at item 3 (proposed section 8A).
Item 2 - subsection 4(9)
Item 2 is a minor amendment that is consequential to the amendments proposed at item 3.
Item 3 - Part II
Item 3 repeals Part II of the FOI Act (publication of certain documents and information) and establishes a new information publication scheme for Commonwealth agencies subject to the FOI Act. The publication scheme will not apply to Ministers.
The new scheme provides a statutory framework for pro-active publication of information by agencies. The purpose of the scheme is to allow the FOI Act to evolve as a legislative framework for giving access to information through agency driven publication, rather than as a scheme that is only reactive to requests for documents.
Proposed subsection 7A provides a guide to assist understanding the elements of the information publication scheme.
Under proposed subsection 8(1), an agency must prepare a plan showing how it proposes to implement the publication requirement. The plan must be published by the agency (under proposed paragraph 8(2)(a)), such as by making it available on the agency's website.
Proposed section 8(2) sets out information that must be published. The classes of information substantially reflect classes of information that must be published under existing paragraph 8(1)(a) and subsection 9(1) of the FOI Act. For example, an agency will continue to be required to publish information about its operations and on the rules and guidelines that are used to make decisions affecting members of the public. Additional classes of information must also be published. Under proposed paragraph 8(2)(d), for example, agencies will be required to publish details of statutory appointments. Details might include the name of the person appointed, the position to which they are appointed (and particulars of the position), the provision under which they are appointed and the length of the appointment.
Proposed paragraph 8(2)(g) requires agencies to publish information in documents to which access is routinely (regularly) given in response to access requests under Part III of the FOI Act. The intention is that information in which there has been a demonstrated level of interest from the community by way of access requests should be pro-actively made available to the public (without requiring - or at least limiting the need for - applications to be made). There are some exceptions to this requirement which recognise that not all types of information routinely disclosed in response to FOI access requests are appropriate for public disclosure. For example, an agency might regularly grant access to documents in connection with case-related files, but access might only be given to a relatively small portion of total files held by the agency. The resource implications of pro-actively publishing this information on the agency's website may be high. To address situations such as this, proposed subparagraph 8(2)(g)(iii) empowers the Information Commissioner to relieve an agency from the requirement to publish certain classes of information by making a determination.
Around 85-90 per cent of FOI requests annually are for personal information. Proposed subparagraphs 8(2)(g)(i) and (ii) qualify the publication requirement so that it does not apply to personal and business information (of any person) if it would be unreasonable to publish the information. In most cases it would be unreasonable, for example, to publish personal or business information where access is routinely given to the person or business to whom the information relates. It would also be unreasonable to publish the information if it is personal or business information about a third party in circumstances where the third party consents to disclosure to a particular applicant (but would not give consent if the information was to become publicly available). It would generally not be unreasonable to publish the names of officials from Commonwealth agencies in connection with their duties.
Proposed subsection 8(3) allows the Information Commissioner to make a determination for the purposes of proposed subparagraph 2(g)(iii). A determination of this kind is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Proposed subsection 8(4) establishes that an agency may publish other information it holds. The intention is that an agency, in addition to publishing the information that must be published under proposed subsection 8(2), will publish other classes of information that it holds, having regard to the objects of the FOI Act and guidelines issued by the Information Commissioner (see proposed section 9A in this Schedule). Agencies are generally best placed to identify information they hold which should be published taking into account the objects of the FOI Act.
Proposed subsection 8(5) clarifies that section 8 applies to a function or power even if the agency does not have that function or power under an enactment.
Proposed section 8A defines 'operational information' for the purposes of paragraph 8(2)(j) (which is information that must be published by an agency). This section is intended to capture a substantial part of the existing requirement to publish information under existing subsection 9(1) of the FOI Act. Proposed subsection 8A(2) reflects an existing qualification to the requirement under subsection 9(1) of the FOI Act. For example, law reports published by a private publishing company would not be operational information of an agency.
Proposed section 8B requires agencies to ensure that the information published under the information publication scheme is accurate, up-to-date and complete. If members of the public are to use or rely on published information it is important that the information is accurate or that an assessment can be made as to its currency.
Proposed section 8C establishes two restrictions on the requirement for information to be published under the scheme. Proposed subsection 8C(1) makes it clear that an agency is not required to publish information that would be exempt under the FOI Act. However, this does not prevent an agency from publishing matter that might otherwise be exempt and that can properly be published. Proposed subsection 8C(2) makes it clear that an agency is not required to publish information which is restricted or prohibited from publication under other legislation (for example by application of a secrecy provision).
Proposed section 8D provides for how and to whom information is to be published. In general, it is anticipated that the bulk of information will be published to members of the public by making the information available on the agency's website. Proposed paragraph 8D(2)(b) is intended to facilitate access where only certain classes of persons may have a legitimate interest in the information. In this case, it may not be appropriate for wider disclosure. For example, access could be arranged by issuing passwords to access a separate part of the agency's website.
Proposed paragraph 8D(3)(c) is intended to address instances where it is not possible or reasonably practicable to publish information on a website. This could be due to information being contained in a format that cannot readily be uploaded to a website. In all cases, details of how the information may be obtained must be published on the agency website, such as the name and telephone number of an officer to contact to arrange access to the information.
Proposed subsections 8D(4) and (5) provide for charges to be imposed. These charges are separate from charges imposed for processing an access request under regulations. Proposed subsection 8D(4) makes it clear that an agency cannot charge a person for simply accessing information from the website. Charges may be imposed if the agency incurs a specific reproduction or incidental cost in providing access. This would include a situation where, for example, the information was contained in a recording that could not be readily converted to electronic format.
Proposed section 8E permits the Information Commissioner to assist an agency in meeting some of its obligations under the scheme. This is consistent with the objective of the Information Commissioner being a resource for agencies (as well as for members of the public). The Information Commissioner could, for example, assist an agency to identify the types of information that should be published under the permissive part of the publication scheme (beyond the mandatory classes in proposed subsection 8(2)).
Proposed section 8F vests the Information Commissioner with functions relating to monitoring compliance by agencies with the publication scheme. The Information Commissioner may undertake a general review, a formal investigation under proposed Part VIIB, or a less formal monitoring process. Under Part VIIB, the Information Commissioner has certain powers to obtain access to information and may report to the Minister if not satisfied that an agency has taken appropriate action to implement an investigation recommendation.
Proposed section 9 requires agencies to review their publication schemes from time to time and at least within 5 years of each completed review. The review must be completed in conjunction with the Information Commissioner. This may involve reporting to the Commissioner on the review. The first review must be completed within 5 years of commencement of the provision.
Proposed section 9A requires agencies to have regard to the objects of the Act and to guidelines issued by the Information Commissioner in meeting the obligations to publish information. It is not intended that under the information publication scheme agencies should publish all of the information they hold. The decision on what to publish is to be guided by the objects of the Act (for example, information that could assist in increasing scrutiny of the government's activity or could increase public participation in government processes). The Information Commissioner's guidelines may address classes of information appropriate for publication (beyond the mandatory classes of information in proposed subsection 8(2)), how long information should remain published, as well as the manner in which information should be published.
Proposed section 10 is intended to replicate the effect of existing section 10 of the FOI Act.
Proposed section 10A provides for who may perform functions or exercise powers under new Part II. The authority is consistent with existing section 23 of the FOI Act that is applicable to Part III access requests.
Item 4 - saving - unpublished information
This item preserves the protection afforded by existing section 10 of the FOI Act in certain circumstances so that no disadvantage arises from repeal.