House of Representatives

Explanatory Memorandum

Circulated By Authority of the Cabinet Secretary, Senator the Hon Joe Ludwig

Schedule 3 - Exemptions

Part 1 - Amendments to the Archives Act, open access period amendments

Item 1- subsection 3(1)

This item inserts a definition for 'open access period' which is essentially a signpost to the other provisions in the Act which separately define periods for a Cabinet notebook, a record containing Census information and any other record. The effect of the open access period is that upon reaching a defined age, access to records is regulated under the Archives Act instead of the FOI Act. When a record is in the open access period the Archives must cause the records to be made available for public access, upon request, unless an exemption applies (see section 31 of the Archives Act). Agencies are not excluded from the operation of the Archives Act (as they can be under the FOI Act) and the exemption rules are different to those under the FOI Act to reflect that the need for confidentiality reduces over time.

Item 2 - subsection 3(7)

This item repeals subsection 3(7) and substitutes a new definition for when a record is in the open access period. The purpose of the amendment is to bring forward the open access period from 30 years to 20 years for most Commonwealth records after a 10 year transition period commencing from 1 January 2011 and ending 31 December 2020. Different open access periods apply to a Cabinet notebook and a record containing Census information. As illustrated by the table, the effect of the transition is that the open access period is gradually brought forward so that on and from 1 January 2021 the system returns to a single year release to which the proposed 20 year rule will apply. For example, a record that came into existence in the year ending 31 December 2000 will be in the open access period from 1 January 2021.

As a result of this amendment, the FOI Act will govern access to most documents up until 20 years after the year the documents come into existence and after that time access will be governed by the Archives Act (see paragraph 12(1)(a) of the FOI Act).

Item 3 - subsection 22A(1)

Item 3 repeals subsection 22A(1) and substitutes a new definition for when a record that is a Cabinet notebook is in the open access period. The purpose of this amendment is to bring forward the open access period for Cabinet notebooks from 50 years to 30 years after a 10 year transition period commencing from 1 January 2011 and ending 31 December 2020. As illustrated by the table, the effect of the transition is that the open access period is gradually brought forward so that on and from 1 January 2021 the system returns to a single year release to which the proposed 30 year rule will apply. For example, a Cabinet notebook that came into existence in the year ending 31 December 1990 will be in the open access period from 1 January 2021.

Item 4 - paragraph 26(1)(a)

Item 4 is consequential to the proposal at item 2 to bring forward the open access period for most records from 30 years to 20 years. Under section 26 of the Archives Act, subject to certain exceptions, a person is guilty of an offence if the person engages in conduct which results in addition to, or alteration of, a Commonwealth record that has been in existence for more than a certain period. This item amends paragraph 26(1)(a) so that the offence will apply to a Commonwealth record that has been in existence for more than 15 years (instead of 25 years). The reduction by 10 years is consistent with the proposal to bring forward the open access period by 10 years at item 2.

Item 5 - paragraph 27(3)(b)

This item is consequential to the proposal at item 2 to bring forward the open access period for most records from 30 years to 20 years. Under section 27 of the Archives Act a Commonwealth record that has been determined to be part of the archival resources of the Commonwealth, and is not in the custody of the Archives, must be transferred to the Archives by a Commonwealth institution within a certain period of coming into existence if it ceases to be a current record. The purpose of this amendment is to amend the time of compulsory transfer so that a record of this kind must be transferred to the Archives within 15 years of coming into existence (instead of 25 years) if it has not already been transferred to the Archives. The reduction by 10 years is consistent with the proposal to bring forward the open access period by 10 years for most records at item 2.

Item 6 - subsection 30(2)

Item 6 is consequential to the proposal at item 2 to bring forward the open access period for most records from 30 years to 20 years. Under section 30 of the Archives Act, the Archives must ensure that all Commonwealth records transferred to its care are made available, as reasonably required, for use by Commonwealth institutions. Records that have been in existence for more than a certain period must not be made available to a Commonwealth institution in a manner that involves the records leaving the custody of the responsible person except as necessary for the proper conduct of the business of the Commonwealth institution. The purpose of this amendment is to amend the time at which the custodial qualification applies to a record so that it applies to a record that has been in existence for more than 15 years (instead of 25 years). The reduction by 10 years is consistent with the proposal to bring forward the open access period by 10 years for most records at item 2.

Part 2 - Main exemption amendments to the FOI Act

Item 7 - subsection 4(1)

Item 7 inserts a definition into the interpretation section in the FOI Act which defines Cabinet to include a committee of the Cabinet. The definition has application in connection with the Cabinet exemption (see item 26 section 34), but does not change the scope of the Cabinet exemption as it replicates an existing definition in the current FOI Act (see subsection 34(6)). It is a minor drafting change to improve readability.

Item 8 - subsection 4(1) (definition of Cabinet notebook)

This item is a minor amendment that is consequential to the amendment proposed at item 7. The reference to a committee of the Cabinet is not required in light of the definition at item 7.

Item 9 - subsection 4(1)

Item 9 inserts a new term 'conditionally exempt' into the interpretation section of the FOI Act which means a document to which Division 3 of Part IV (public interest conditional exemptions) applies (see item 33).

Item 10 - subsection 4(1) (definition of edited copy)

This item amends the existing definition of 'edited copy' to have the meaning given by section 22 (see item 17).

Item 11 - subsection 4(1) (paragraph (a) of the definition of exempt document)

Item 11 amends the existing definition of 'exempt document' to have the meaning given by proposed section 31B which defines when a document is exempt for the purposes of Part IV (see item 22).

Item 12 - subsection 4(1)

This item inserts a definition of 'run out' which is a term used in connection with review rights given to certain third parties whom an agency or Minister is obliged to consult upon considering requests for access to documents containing information concerning the third party (see item 21, proposed subsections 26A(4), 27(7) and 27A(6)).

Item 13 - at the end of section 4

The purpose of this proposed amendment is to clarify that information communicated in confidence pursuant to any treaty or formal instrument on the reciprocal protection of classified information between the Commonwealth Government or an authority of the Commonwealth and a foreign government, an authority of a foreign government or an international organisation is information that meets the criteria for exemption in paragraph 33(b).

Item 14 - after section 11

The purpose of proposed section 11A is to establish the basic rule that where a valid request for a document has been made (that is, a request that complies with subsection 15(2)), and any required charges have been paid, an agency or Minister must give access to the document except if the document is an exempt document. Proposed subsections 11A(1), (2) and (3) essentially restate the requirement in existing subsection 18(1) of the Act (which is proposed for repeal at item 16).

To improve the narrative flow of the Act, the requirement to give access to a document is proposed to be inserted after section 11 which gives every person a legally enforceable right of access to a document of an agency or an official document of a Minister (other than an exempt document).

Proposed subsection 11A(4) essentially restates the rule in existing subsection 18(2) that an agency or Minister is not required to give access to a document at a particular time, if at that time, the document is an exempt document. The document must be exempt at the time the access request is determined. The reason for maintaining confidentiality in a document may not be on-going (in other words, just because a document is exempt at one point in time it may not be exempt at a later time due to changed circumstances or passage of time).

Proposed subsection 11A(5) introduces a single form of public interest test that applies to those exemptions (called public interest conditional exemptions) in proposed Division 3 of Part IV. The proposed test is weighted in favour of giving access to documents so that the public interest in disclosure remains at the forefront of decision making. It is not enough to withhold access to a document if it meets the criteria for an exemption in Division 3 of Part IV. Where a document meets the initial threshold of being conditionally exempt (see item 9, subsection 4(1)), it is then necessary for a decision maker to apply the public interest test proposed in subsection 11A(5). The starting point is that access must be given to conditionally exempt documents unless, to do so, would be contrary to the public interest.

It is intended that application of the public interest test will involve weighing up factors for and against disclosure for the purpose of determining whether access would, on balance, be contrary to the public interest. In this process a decision maker needs to identify factors favouring disclosure and factors not favouring disclosure in the circumstances and to determine the comparative importance to be given to these factors. Under item 20 (proposed paragraph 26(1)(aa)) if access to a conditionally exempt document is to be refused the written notice of the decision must include the public interest factors taken into account in making the decision to refuse access.

In a similar vein to proposed subsection 11A(4), a decision to refuse access to a document because it would be contrary to the public interest for the purposes of proposed subsection 11A(5) depends on the circumstances relevant at the time of the decision. A document that is exempt at one point in time may not be exempt at a later time.

Proposed subsection 11A(6) establishes a rule when a document satisfies grounds for exemption under both proposed Division 2 of Part IV (exemptions) and Division 3 of Part IV (public interest conditional exemptions). In that case, the rule is that an agency or Minister is not required to give access to the document.

Proposed subsection 11B deals with factors for the purposes of working out whether access to a conditionally exempt document would on balance be contrary to the public interest. Proposed subsection 11B(2) clarifies that factors, other than those factors addressed in subsection 11B, may be relevant for the purpose of applying the public interest test in subsection 11A(5).

Proposed subsection 11B(3) lists factors that favour disclosure of documents. The list is non-exhaustive and other factors favouring access may be taken into account if relevant to the question of giving access to a document in the circumstances.

Proposed subsection 11B(4) lists factors that must not be taken into account in deciding whether access to a document would, on balance, be contrary to the public interest. The factors are ordinarily identified as arguments against giving access to a document. The effect of this provision is that decision makers may not rely on the listed factors for the purposes of weighing up whether a greater public interest lies in maintaining confidentiality in a document than in giving access to the document.

Proposed subsection 11B(5) provides that an agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of applying the public interest test. The Information Commissioner will have power to issue guidelines under proposed section 93A (item 57 Schedule 4). The Bill does not list factors which would favour not giving access for the purposes of the public interest test. Some public interest conditional exemptions include criteria which require a finding of harm, such as disclosure would, or could reasonably be expected to, cause damage to certain interests, or would have a substantial adverse effect on certain interests, or would, or could reasonably be expected to, prejudice certain interests. Where a decision maker is satisfied that an initial harm threshold is met that finding will be a factor against giving access to a document.

Item 15 - before section 12

Proposed subsection 11C introduces a requirement for an agency or Minister to publish information which has been disclosed in response to an access request, within 10 working days after the day on which a person is given access to the document. The requirement is intended to reinforce the active publication rationale which underlies the proposed information publication scheme in Schedule 2. The requirement does not apply when the information that is given to a person is:

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personal information about any person if it would be unreasonable to publish the information;

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information about the business, commercial, financial or professional affairs of any person if it would be unreasonable to publish the information;

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other information of a kind determined by the Information Commissioner if it would be unreasonable to publish the information; or

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any information if it is not reasonably practicable to publish the information because of the extent of modifications that need to be made to delete information of the kind mentioned above.

The latter case (paragraph 11C(1)(d)) is intended to address the circumstance where access is given to a document that contains a mixture of information some of which should not be published (for example, because it is the applicant's personal information). It will not always be reasonable to publish the information because of the work involved in undertaking deletions or because the redacted copy may hold limited value in its publication or both.

Proposed subsection 11C(2) gives the Information Commissioner a discretionary power to exclude other categories of information from the publication requirement. A determination made for this purpose is a legislative instrument for the purposes of the Legislative Instruments Act 2003. An example may be where the requirement to publish the information serves to inhibit access being given to information because access is dependent on a third party consenting to disclosure of information about the third party. The third party may agree to give access to a particular applicant, but may not agree if the information is to be published to the world. The Information Commissioner will be able to inquire whether particular circumstances warrant exclusion.

Like the proposed publication scheme in Schedule 2, proposed subsection 11C(3) provides that the information is to be published to the public generally on a website. If the information cannot readily be published on a website, the website should give details of how the information may be obtained.

Proposed subsections 11C(4) and 11C(5) permit an agency to impose a charge for accessing information. These charges are separate from processing charges imposed for processing an access request under Part III of the FOI Act and set out in regulations. Proposed subsection 11C(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 for uploading to the website, and the agency incurred costs in having that recording transcribed. Another example would be where a hard copy of a report is requested when the report is also available online.

The provision does not specify how long an agency or Minister should keep information posted on a website. Some information will have more enduring interest than other information. Rather than specifying a minimum period for publication, it is intended that the posting period should be flexible. The Information Commissioner may issue guidance to agencies in respect of this matter (the Information Commissioner has power to issue guidelines under proposed section 93A item 57 Schedule 4).

Item 16 - section 18

This item repeals section 18. The effect of section 18 (general rule for mandatory access) is replicated in proposed section 11A.

Item 17 - section 22

This item redrafts an existing provision in the FOI Act to improve readability. It is not intended to change the scope of this provision. Section 22 requires that access be given to an edited copy of a document if it is reasonably practicable to delete exempt matter (that falls within the scope of the applicant's request) or irrelevant matter (that falls outside the scope of the applicant's request), unless it is apparent that the applicant would not wish to have access to the edited copy.

Item 18 - subsections 25(1) and (2)

This item amends section 25 so that the right to neither confirm nor deny the existence or non-existence of certain exempt documents does not apply to the exemption for documents affecting relations with states (section 33A in the existing Act and proposed section 47B in the Bill). This item implements recommendation 42 of the Open government report.

Items 19 and 20 - paragraph 26(1)(a)

These items insert a new requirement into the content of the notice that must be given to an applicant when a decision is made to refuse access to a document. The effect of proposed paragraph 26(1)(aa) is that the reasons must include the public interest factors taken into account if access has been refused for a public interest conditional exemption. (Under the existing Act, a requirement to state the public interest grounds on which access has been refused only applies under the internal working documents exemption at section 36.) These items implement recommendation 39 of the Open government report.

Item 21 - sections 26A, 27, 27A and 28

Section 26A (consultation requirement in respect of documents likely to affect Commonwealth-State relations) has been redrafted to improve readability and to insert terminology that is consistent with the application of the proposed single public interest test to the Commonwealth-State relations exemption (section 33A in the existing Act and proposed section 47B in the Bill).

Under existing section 27, where a request is received for a document containing information concerning another person's business or professional affairs, or the business, commercial or financial affairs of an organisation or undertaking, a decision to grant access to the document must not be made unless, where it is reasonably practicable to do so, the agency or Minister gives the third party a reasonable opportunity to make submissions that the document is exempt under the business affairs exemption. Proposed section 27 qualifies that requirement so that consultation is only necessary where it appears to the agency or Minister that the business might reasonably wish to make a contention that the document is exempt under the business affairs exemption. Under the existing provision consultation is necessary even for a decision to give access to simple payment receipts, such as taxi receipts. The proposed qualification currently exists in relation to the consultation requirement for documents containing personal information about third parties (section 27A).

Like existing section 27A, proposed subsection 27(3) lists certain matters that must be taken into account by an agency or Minister in determining whether a person or organisation might reasonably wish to contend that a document is exempt under the business affairs exemption. The effect of proposed paragraph 27A(3)(d) is that the list of matters relevant to making this determination is not exhaustive.

Section 27A (consultation requirement with third parties about their personal information) is redrafted to improve readability and to insert terminology that is consistent with the application of the proposed single public interest test to the personal privacy exemption (section 41 in the existing Act and proposed section 47F in the Bill). Existing section 27A is also re-drafted to improve readability.

This item also repeals section 28 which deals with Information Access Offices (which are the regional offices of the National Archives of Australia). Under subsection 9(2), an agency is required to make certain operational information available for inspection (and purchase) at Information Access Offices. Under the proposals to amend Part II of the FOI Act (see Schedule 2), operational information is to be published on websites (or details given of how access may be obtained). Particularly with new technologies, access to documents will normally be able to be facilitated by means that do not require physical inspection, which renders provision for Information Access Offices otiose.

Item 22 - before section 32

The table in proposed section 31A that is inserted by this item provides a guide on how the Act applies to documents that are exempt, conditionally exempt or contain exempt matter under the Act. It is intended to serve as an aid to applying the Act.

A document is made exempt under the Act if it is exempt for the purposes of Part IV (which sets out the exemption provisions), if it is excluded from the operation of the Act by virtue of section 7, or is an official document of a Minister that contains matter not relating to the affairs of an agency. Proposed section 31B defines when a document is exempt for the purposes of Part IV of the Act. Part IV is re-organised so that exemptions not subject to the proposed single public interest test are grouped together into Division 2 exemptions, and exemptions that are subject to the test are grouped together into Division 3 public interest conditional exemptions.

Item 23 - section 32

An amendment is made to section 32 (interpretation provision) to insert terminology that is consistent with the application of the proposed single public interest test to exemptions subject to that test.

Item 24 - after section 32

This item inserts a heading as part of the restructuring of the exemption provisions in Part IV.

Item 25 - at the end of section 33

Item 25 inserts a note for section 33 which makes a cross reference to proposed subsection 4(10) (inserted by item 13 of this Schedule).

Item 26 - sections 33A to 36

Commonwealth-State relations exemption

Section 33A (documents affecting relations with States) is repealed by this item as a consequence of the restructuring of exemption provisions into exemptions and public interest conditional exemptions. It is inserted as section 47B (a public interest conditional exemption) under item 33.

Cabinet exemption

Proposed section 34 preserves the Cabinet exemption but introduces some amendments to its scope. The Cabinet exemption is concerned with protecting information central to the Cabinet process and ensuring that the principle of collective ministerial responsibility (central to the Cabinet system) is not undermined. Subject to a dominant purpose qualification, proposed section 34 will apply the exemption to:

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Cabinet submissions that are proposed for submission to Cabinet but are never submitted (' was proposed' in subparagraph 34(1)(a)(i));

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a document that is a briefing prepared for a Minister on a Cabinet submission (proposed paragraph 34(1)(c)); and

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a document that is a draft of a Cabinet submission, official record of the Cabinet or a briefing prepared for a Minister on a Cabinet submission (proposed paragraph 34(1)(d)).

A Cabinet submission will only be exempt if it was brought into existence for the dominant purpose of submission to the Cabinet for its consideration. A briefing will only be exempt if it was brought into existence for the dominant purpose of briefing a Minister on a Cabinet submission. Proposed subsection 34(4) introduces a further limit on the Cabinet exemption by making it clear that a document is not exempt only because it is attached to a Cabinet submission, briefing or a document containing information that would reveal a Cabinet deliberation or decision. If, at the time a report is brought into existence it is intended for public release and Cabinet's consideration is incidental to that main purpose, the report will not be covered by the Cabinet exemption because it will not have been brought into existence for the dominant purpose of submission to the Cabinet. Attaching the document to a Cabinet submission will not make the report exempt under the Cabinet exemption.

Proposed subsection 34(2) exempts a document to the extent that it is a copy or part of, or contains an extract from, a document that is exempt under proposed subsection 34(1). Similar provision is made in existing paragraph 34(1)(c).

Proposed subsection 34(3) exempts a document to the extent it contains information which would reveal a Cabinet deliberation or decision except if the deliberation or decision has been officially disclosed. It is intended that the exemption would still be available to any part of the document that contains a deliberation or decision that has not been publicly announced.

Proposed subsection 34(5) confirms that a document by which a decision of the Cabinet is officially published (for example a media release) is not an exempt document. This reflects an existing qualification in section 34(1)(d).

Proposed subsection 34(6) preserves the effect of existing subsection 34(1A).

Executive Council documents exemption

The Executive Council documents exemption is repealed (section 35) and it is not replaced in the Bill. The repeal of this exemption implements recommendation 50 of the Open government report. The report's justification for repeal was that Executive Council documents that warrant exemption can be withheld under other exemption provisions such as the exemption for personal privacy or the exemption for international relations.

Internal working documents exemption

Section 36 (internal working documents exemption) is repealed by this item as a consequence of the restructuring of exemption provisions into exemptions and public interest conditional exemptions. It is inserted as proposed section 47C (a public interest conditional exemption) under item 33.

Item 27 - sections 39, 40 and 41

The exemptions addressed in section 39 (documents affecting financial or property interests of the Commonwealth), section 40 (documents concerning certain operations of agencies) and section 41 (documents affecting personal privacy) are repealed by this item as a consequence of the restructuring of exemption provisions into exemptions and public interest conditional exemptions. All these exemptions are inserted as public interest conditional exemptions under item 33. Section 39 is inserted as proposed section 47D, section 40 is inserted as proposed section 47E and section 41 is inserted as proposed section 47F.

Item 28 - subsection 42(2)

Proposed subsection 42(2) introduces a new qualification to the legal professional privilege exemption and has the effect of confirming that the exemption is not available if privilege has been waived. This proposed amendment implements recommendation 67 of the Open government report.

Proposed subsection 42(3) ensures that operational information that is used by agencies in making decisions or recommendations affecting members of the public (within the meaning of proposed section 8A at item 3 Schedule 2) cannot be exempt on grounds of legal professional privilege under subsection 42(1) (because it contains information that would otherwise be exempt under subsection 42(1)). The provision is intended to replicate the effect of existing subsection 42(2).

Item 29 - sections 43, 43A and 44

The exemptions addressed in section 43 (documents relating to business affairs), section 43A (documents relating to research) and section 44 (documents affecting national economy) are repealed by this item as a consequence of the restructuring of exemption provisions into exemptions and public interest conditional exemptions. All these exemptions are inserted as public interest conditional exemptions under item 33. Section 43A is inserted as proposed section 47H, section 44 is inserted as proposed section 47J and section 43 is inserted as proposed section 47G (other than that part of the exemption applicable to documents disclosing trade secrets or commercially valuable information which is not subject to a public interest test and inserted as new section 47).

Items 30 and 31 - subsection 45(2)

These items are consequential as a result of restructuring the exemption provisions into exemptions and public interest conditional exemptions. They are not intended to make any change in substance.

Item 32 - section 47

Documents arising out of companies and securities legislation

This item repeals the exemption for documents arising out of companies and security legislation, which implements recommendation 72 of the Open government report.

Documents disclosing trade secrets or commercially valuable information

Proposed section 47 replicates the exemption that applies to documents that would disclose trade secrets under existing paragraph 43(1)(a) or would disclose any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if disclosed under existing paragraph 43(1)(b). These grounds for exemption are not proposed to be subject to the public interest test. Information of this type has very high commercial value and includes information that gives a business an advantage over its competitors. The remaining grounds for exemption under existing section 43 (business affairs exemption) are proposed to be made subject to the public interest test (see proposed section 47G).

Proposed subsection 47(2) replicates an existing provision in subsection 43(2) and makes clear that the exemption does not apply where access is sought by the person or organisation to whom the information concerns.

Proposed subsection 47(3) replicates an existing provision in subsection 43(3).

Item 33 - at the end of Part IV

Division 3 of Part IV contains the public interest conditional exemptions. A document is 'conditionally exempt' if it meets the criteria in any of these exemptions. Such a document is only exempt if access to the document would, on balance, be contrary to the public interest for the purposes of the proposed public interest test in subsection 11A(5). Some public interest conditional exemptions include criteria which require a finding of harm. Where a decision maker is satisfied that an initial harm threshold is met that finding will be a factor against giving access to a document for the purposes of the public interest test.

Commonwealth-State relations exemption

Proposed section 47B preserves the Commonwealth-State relations exemption under existing section 33A. This exemption is currently subject to a public interest test.

Deliberative processes exemption

Proposed section 47C preserves the internal working documents exemption under existing section 36. The title of the provision is changed to deliberative processes which implements recommendation 51 of the Open government report. This exemption is currently subject to a public interest test.

Financial or property interests of the Commonwealth

Proposed section 47D preserves the exemption under existing section 39. This exemption is currently subject to a public interest test.

Certain operations of agencies

Proposed section 47E preserves the exemption under existing section 40, with the exception that one ground for exemption is repealed. The Open government report recommended that paragraph 40(1)(e) be repealed on the basis that other exemptions were available if protection from disclosure was needed. That paragraph provides that a document is exempt where disclosure would, or could reasonably be expected to have a substantial adverse effect on the conduct by or on behalf of the Commonwealth or an agency of industrial relations. Exemption grounds that may be relevant to protecting information relating to industrial relations matters include paragraph 40(1)(d) (where disclosure would or could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of an agency (proposed paragraph 47E(d)), and section 41 (documents affecting personal privacy (proposed section 47F)). This exemption is currently subject to a public interest test.

Personal privacy exemption

Proposed section 47F preserves the exemption under existing section 41, but makes some changes. The personal privacy exemption is to be made subject to the public interest test (it is not currently subject to a public interest test). The effect of the application of the public interest test is to ensure that the public interest in disclosure remains at the forefront of decision making.

Proposed subsection 41(2) identifies matters that must be taken into account by an agency or Minister in determining whether disclosure of a document would involve unreasonable disclosure of personal information. It also makes clear that a decision maker may have regard to any other matter considered relevant to that question. Paragraph 47F(2)(d) clarifies that the list of matters relevant to making this determination is not exhaustive. The matters are similar to those matters that must be taken into account for the purposes of consulting an affected third party under existing subsection 27A(1A).

Under existing subsection 41(4), an agency or Minister is required to notify a qualified person, if reasonably practicable, if access has been given to a document containing personal information of a medical or psychiatric nature about an applicant that has originated from the qualified person. That procedural requirement is repealed which implements recommendation 64 of the Open government report. The justification for repeal was that there is no need for the requirement. An agency may be required to consult the qualified person before disclosing the document under section 27A (documents affecting personal privacy).

The definition of 'qualified persons' is also amended to replace 'marriage guidance counsellor' with the broader term of 'counsellor'.

Business exemption

Proposed section 47G preserves the exemption under existing subsection 43(1)(c), but makes this exemption subject to the public interest test. The effect of the application of the public interest test is to ensure that the public interest in disclosure remains at the forefront of decision making. The other exemption grounds under the existing business affairs exemption are not proposed to be made subject to the public interest test (see item 32 proposed section 47).

Research exemption

Proposed section 47H preserves the exemption for documents relating to research under existing section 43A, but makes this exemption subject to the public interest test. The effect of the application of the public interest test is to ensure that the public interest in disclosure remains at the forefront of decision making. The exemption can only be claimed by an agency specified in Schedule 4 of the FOI Act. The only agencies prescribed for that purpose are the Commonwealth Scientific and Industrial Research Organisation and the Australian National University.

The economy exemption

Proposed section 47J replaces the economy exemption under existing section 44. Proposed section 47J better reflects the modern economic policy responsibilities of the Government, by focusing on those areas of the economy which the Government controls and better reflecting the nature of the Government's role in developing and implementing policy action on matters affecting the Australian economy. The existing section 44 is not currently subject to a public interest test. The section 47J exemption is conditional as it is subject to the public interest test, to ensure that the public interest in disclosure remains at the forefront of decision making.

The economy exemption in proposed section 47J reflects the need for the Government to be able to maintain the confidentiality of certain information if it is to carry out its economic policy responsibilities, including the development and implementation of economic policy in a timely and effective manner. Proposed section 47J requires a decision maker to focus on the consequences of disclosure, being the expected effect on Australia's economy. Paragraphs 47J(1)(a) and 1(b) describe circumstances where a substantial adverse effect would, or could reasonably be expected to, result from disclosure. It is anticipated that these may include the following:

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where the possible premature disclosure of information about Government proposals, policy development and decision-making processes could compromise the ability of the Australian Government to obtain access to information;

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where the disclosure of information, including estimates and modelling, may adversely affect the performance of the Australian economy by undermining confidence in markets, financial frameworks or institutions; or

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where the disclosure of advice on the performance of a particular market might reveal information about its performance that could distort the Australian economy by influencing investment decisions or giving particular individuals or businesses a competitive advantage.

Proposed subsection 47J(2) makes it clear that an adverse impact on Australia's economy is not limited to considerations of the economy as a whole; rather, it includes potential adverse impacts on a particular sector or region within Australia. For example, the disclosure of the results of information regarding the impacts of economic conditions or policies on particular sectors of the market may distort investment decisions within that sector and, in turn, impact adversely on the Government's ability to develop and implement economic policies more generally.

Item 34 - Schedule 4

This item is a consequential amendment arising from item 33 (amendment proposed to the research exemption).

Part 3 - Other exemption amendments

Item 35 - paragraph 33(1)(b) of the Archives Act

Under existing paragraph 33(1)(b) of the Archives Act a document is exempt if it contains information communicated in confidence by a foreign government, authority or international organisation to the Commonwealth Government and disclosure of the information would constitute a breach of that confidence. Tension arises where a foreign government objects to disclosure of records, and apart from the objection no other evidence is available to support maintaining confidentiality of the records. Under proposed paragraph 33(1)(b), where a foreign entity advises that the document is still confidential, the decision maker (the Archives) must be satisfied that a reasonable basis exists for maintaining the confidence of the information in order to invoke the exemption. (Under item 2 of this Schedule the open access period for the purposes of the Archives Act is proposed to be brought forward from 30 years to 20 years.)

Items 36 and 37 - paragraphs 50A(2)(b) and 50A(3)(b) of the Archives Act

The Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 inserted new section 50A into the Archives Act which requires the AAT to request the Inspector-General of Intelligence and Security to give evidence in certain proceedings. Items 36 and 37 (being amendments to paragraph 50A(2)(b)) are consequential to the proposed amendment at item 35.

Item 38 - subsection 34(1) of the Privacy Act

Item 38 is a consequential amendment arising from the proposed amendment at item 18 (amendment to section 25 of the FOI Act so that the right to neither confirm nor deny the existence or non-existence of certain exempt documents does not apply to the existing exemption for documents affecting relations with states).

Part 4 - Application provisions

Item 39 - application - Part 2

The effect of this application provision is that an amendment made by an item in Part 2 of Schedule 3 applies to requests for access (made under section 15 of the FOI Act) that are received at or after the commencement of that item.

Item 40 - application - items 35, 36 and 37

The effect of this application provision is that the amendments made by items 35, 36 and 37 will apply to requests for access (made in accordance with section 40 of the Archives Act) that are received by the Archives at or after the commencement of those items.