FREEDOM OF INFORMATION ACT 1989
*1* The Freedom of Information Act 1989 as shown in this reprint comprises Act
No. 46, 1989 amended as indicated in the Tables below.
Citation of Laws-The Self-Government (Citation of Laws) Act 1989 (No. 21,
1989) altered the citation of most Ordinances so that after Self-Government
day they are to be cited as Acts. That Act also affects references in ACT laws
to Commonwealth Acts.
Table 1
Table of Ordinances
Ordinance Date of Date of Application,
Number notification commencement saving or
and year in Gazette transitional
provisions
Freedom of Information Ordinance 1989
46, 1989 10 May 1989 Ss. 1 and 2: 10 May 1989
Remainder: 11 May 1989 (see Gazette
1989, No. S164)
Self-Government day 11 May 1989
Table 2
Table of Acts
Act Date of Date of Application
Number and notification commencement saving or
year in Gazette transitional
provisions
Royal Commissions and Inquiries (Consequential Provisions) Act
1991
3, 1991 1 Mar 1991 Ss. 1 and 2: 1 Mar 1991
Remainder: 1 May 1989 (see s.
2 (2)) -
Freedom of Information (Amendment) Act 1992
4, 1992 25 May 1992 25 May 1992 -
Judicial Commissions (Consequential Amendments) Act 1994
10, 1994 14 Mar 1994 14 Mar 1994 -
Electoral (Amendment) (Consequential Provisions) Act 1994
15, 1994 17 May 1994 Part I (ss. 1-3), s. 7 and Part III
(ss. 9 and 10): 17 May 1994 (see
s. 2 (1))
Ss. 4-6 and Parts IV and V (ss.
11-15): 25 Aug 1994 (see s. 2 (2)
and (3) and Gazette 1994, No. S172)
S. 8: 17 May 1994 (see s. 2 (4))
-
Public Sector Management (Consequential and Transitional
Provisions) Act 1994
38, 1994 30 June 1994 Ss. 1 and 2: 30 June 1994
Remainder: 1 July 1994 (see Gazette
1994, No. S142, p. 2)
Ss. 3, 5-12, 15
and 19
Administrative Appeals (Consequential Amendments) Act 1994
60, 1994 11 Oct 1994 Ss. 1 and 2: 11 Oct 1994
Remainder: 14 Nov 1994 (see s.
2 (2) and Gazette 1994, No. S250)
-
Electricity and Water (Corporatisation) (Consequential Provisions)
Act 1995
7, 1995 28 June 1995 1 July 1995 (see s. 2)
-
Annual Reports (Government Agencies) (Consequential Provisions)
Act 1995
25, 1995 5 Sept 1995 5 Sept 1995 -
Ombudsman (Amendment) Act 1996
17, 1996 1 May 1996 1 May 1996 -
Table of Amendments
ad=added or inserted am=amended rep=repealed rs=repealed and substituted
Provision affected How affected
S. 4 am. Act No. 3, 1991; No. 10, 1994; Nos. 38
and 60, 1994; No. 7, 1995; No. 17, 1996
S. 7 am. Act No. 25, 1995
S. 5 am. Act No. 38, 1994
S. 14 am. Act No. 4, 1992
S. 15 am. Act No. 38, 1994
S. 35 am. Act No. 38, 1994
S. 47A ad. Act No. 15, 1994
S. 55 am. Act No. 38, 1994; No. 25, 1995
S. 59 am. Act No. 4, 1992
S. 60 am. Act No. 60, 1994
FREEDOM OF INFORMATION ACT 1989 - TABLE OF PROVISIONS
TABLE OF PROVISIONS
Section
PART I-PRELIMINARY
1. Short title
2. Commencement
3. Object
4. Interpretation
5. Act to apply to certain tribunals in respect of
administrative matters
6. Exemption of certain bodies
PART II-PUBLICATION OF CERTAIN DOCUMENTS
AND INFORMATION
7. Publication of information concerning functions and
documents of agencies
8. Certain documents to be available for inspection and
purchase
9. Unpublished documents not to prejudice public
PART III-ACCESS TO DOCUMENTS
10. Right of access
11. Part not to apply to certain documents
12. Documents in Australian Archives
13. Access to documents apart from Act
14. Requests for access
15. Transfer of requests
16. Requests involving use of computers etc.
17. Access to documents to be given on request
18. Time within which requests to be decided
19. Forms of access
20. Deferment of access
21. Deletion of exempt matter
22. Decisions to be made by authorised persons
23. Requests may be refused in certain cases
24. Information as to existence of certain documents
25. Reasons and other particulars of decisions to be given
26. Procedure on request in respect of documents likely to
affect relations between the Territory and the
Commonwealth or a State
27. Procedure on request in respect of document relating to
business affairs etc.
28. Persons to be notified of liability to pay charges
29. Charge may be remitted
30. Remission of application fees
31. Period under section 18 to be extended in certain cases
PART IV-EXEMPT DOCUMENTS
32. Interpretation
33. Documents exempt under Commonwealth Act
34. Documents affecting relations with Commonwealth and
States
35. Executive documents
36. Internal working documents
37. Documents affecting enforcement of the law and
protection of public safety
38. Documents to which secrecy provisions of enactments
apply
39. Documents affecting financial or property interests of
the Territory
40. Documents concerning certain operations of agencies
41. Documents affecting personal privacy
42. Documents subject to legal professional privilege
43. Documents relating to business affairs etc.
44. Documents affecting economy
45. Documents containing material obtained in confidence
46. Documents disclosure of which would be contempt of
Legislative Assembly or a court
47. Certain documents arising out of companies and
securities legislation
47A. Electoral rolls and related documents
PART V-AMENDMENT OF PERSONAL RECORDS
48. Persons may make application for amendment of records
49. Form of request for amendment of records
50. Procedure upon request for amendment of records
51. Review of requests for amendments
52. Notation of records supplied before commencement of Act
PART VI-ROLE OF THE OMBUDSMAN
53. Interpretation
54. Complaints to Ombudsman
55. Reports made by the Ombudsman
56. Documents of agencies claimed to be exempt under certain
provisions
57. Ombudsman may represent persons in proceedings before
the Tribunal
PART VII-REVIEW OF DECISIONS
58. Interpretation
59. Internal review
60. Applications to Tribunal
61. Application to Tribunal where decision delayed
62. Powers of Tribunal
63. Proceedings upon exercise of powers under subsection
62 (4), (5) or (6)
64. Constitution of Tribunal for purposes of proceedings
under subsection 62 (4), (5) or (6)
65. Hearing of certain proceedings before the Tribunal
66. Modification of section 42 of the Administrative Appeals
Tribunal Act
67. Production to the Tribunal of documents in relation to
which a certificate has been issued
68. Review of certain decisions in respect of documents
relating to the Commonwealth or a State
69. Review of certain decisions in respect of documents
relating to business affairs etc.
70. Parties
71. Onus
72. Application of section 26 of Administrative Appeals
Tribunal Act etc.
73. Tribunal to ensure non-disclosure of certain matters
74. Production of exempt documents
75. Evidence of certificates
76. Tribunal may make recommendation that costs be available
in certain cases
PART VIII-MISCELLANEOUS
77. Protection against certain actions
78. Protection in respect of offences
79. Reports to Legislative Assembly
80. Determinations of fees and charges
81. Regulations
FREEDOM OF INFORMATION ACT 1989 - LONG TITLE
An Act to give members of the public rights of access
to official documents of the Territory
FREEDOM OF INFORMATION ACT 1989 - PART I PART I-PRELIMINARY
FREEDOM OF INFORMATION ACT 1989 - SECT 1 Short title
1. This Act may be cited as the Freedom of Information Act 1989.*1*
SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER .
FREEDOM OF INFORMATION ACT 1989 - SECT 2 Commencement
2. This Act commences on the date of commencement of section 22 of the
Australian Capital Territory (Self-Government) Act 1988 of the
Commonwealth.*1*
SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER .
FREEDOM OF INFORMATION ACT 1989 - SECT 3 Object
3. (1) The object of this Act is to extend as far as possible the right of
the Australian community and, in particular, the citizens of the Territory, to
access to information in the possession of the Territory by-
(a) making available to the public information about the operations of
agencies and, in particular, ensuring that rules and practices affecting
members of the public in their dealings with agencies are readily available to
persons affected by those rules and practices; and
(b) creating a general right of access to information in documentary form in
the possession of Ministers and agencies, limited only by exceptions and
exemptions necessary for the protection of essential public interests and the
private and business affairs of persons in respect of whom information is
collected and held by agencies.
(2) The provisions of this Act shall be interpreted so as to further the
objects set out in subsection (1) and to ensure that discretions conferred by
this Act are exercised as far as possible to facilitate and promote, promptly
and at the lowest reasonable cost, the disclosure of information.
FREEDOM OF INFORMATION ACT 1989 - SECT 4 Interpretation
4. (1) In this Act, unless the contrary intention appears-
"agency" means an administrative unit or a prescribed authority;
"applicant" means a person who has made a request;
"Australian Archives" means the Australian Archives established under the
Archives Act 1983 of the Commonwealth;
"Commonwealth agency" means a body that is an agency for the purposes of the
Freedom of Information Act 1982 of the Commonwealth;
"document", in relation to an agency, means a document in the possession of
the agency, whether created in the agency or received in the agency;
"enactment" means an Act or a subordinate law (including part of an Act or
of such a law);
"exempt document" means-
(a) a document which, under Part IV, is an exempt document;
(b) a document in respect of which an agency is exempt from the operation of
this Act under section 6; or
(c) an official document of a Minister that contains some matter that does
not relate to the affairs of an agency;
"exempt matter" means matter the inclusion of which in a document causes the
document to be an exempt document;
"officer", in relation to an agency, includes a member of, or a member of
the staff of, the agency;
"official document", in relation to a Minister, means a document that is in
the possession of the Minister in the Minister's capacity as a Minister, being
a document that relates to the affairs of an agency, and includes a document
that has passed from the Minister's possession if the Minister is entitled to
access to the document and the document is not a document of an agency;
"prescribed authority" means-
(a) a body corporate, or an unincorporated body, established for a public
purpose by, or in accordance with the provisions of, an enactment, other
than-
(i) an incorporated company or association;
(ii) a body that, under subsection (2) or the regulations, is
not a prescribed authority for the purposes of this Act;
(iii) a Royal Commission appointed under the Royal Commissions
Act 1991;
(iv) a Board of Inquiry appointed under the Inquiries Act
1991; or
(v) a Judicial Commission appointed under the Judicial
Commissions Act 1994;
(b) any other body, whether incorporated or unincorporated, that is declared
by the regulations to be a prescribed authority for the purposes of this Act,
being-
(i) a body established by the Executive or by a Minister; or
(ii) an incorporated company or association over which the
Territory is in a position to exercise control;
(c) subject to subsection (3), the person holding, or performing the duties
of, an office established by an enactment;
(d) a person holding, or performing the duties of, an office declared by the
regulations to be an office the holder of which is a prescribed authority for
the purposes of this Act, being an office created by the Executive or by a
Minister otherwise than under an enactment; or
(e) ACTEW Corporation Limited;
"principal officer" means-
(a) in relation to an administrative unit-the Chief Executive of the
administrative unit;
(b) in relation to a prescribed authority other than ACTEW Corporation
Limited -
(i) if the regulations declare an office to be the principal
office in respect of the authority-the person holding, or performing the
duties of, that office; or
(ii) in any other case-the person who constitutes that
authority or a person acting in his or her office or, if the authority is
constituted by 2 or more persons, the person who is entitled to preside at any
meeting of the authority at which the person is present or a person acting in
his or her office; or
(c) in relation to ACTEW Corporation Limited-the Chief Executive Officer of
the Company;
"request" means an application made in accordance with subsection 14 (1);
"responsible Minister", in relation to an agency, means-
(a) subject to paragraphs (b) and (c), the Minister who is responsible for
that agency;
(b) in relation to a prescribed authority referred to in paragraph (c) of
the definition of "prescribed authority"-the Minister administering the
enactment concerned; or
(c) in relation to a prescribed authority referred to in paragraph (b) or
(d) of the definition of "prescribed authority"-the Minister declared by the
regulations to be the responsible Minister in respect of that authority;
or another Minister acting for and on behalf of that Minister;
"State" includes the Northern Territory;
"Tribunal" means the Administrative Appeals Tribunal.
(2) An unincorporated body, being a board, council, committee, subcommittee
or other body established by or under an enactment for the purpose of
assisting, or performing functions connected with, a prescribed authority
shall not be taken to be a prescribed authority for the purposes of this Act,
but shall be taken to be comprised within that prescribed authority.
(3) A person shall not be taken to be a prescribed authority only because
the person holds or performs the duties of-
(a) a prescribed office;
(b) an office the duties of which the person performs as duties of his or
her employment as an officer of an agency;
(c) an office of member of a body; or
(d) an office established by an enactment for the purposes of a prescribed
authority.
(4) Where an agency is abolished-
(a) if the functions of the agency are acquired by another agency-any
request made to the first-mentioned agency shall be taken to have been made
to, and any decision made by the first-mentioned agency in respect of a
request made to it shall be taken to have been made by, the other agency;
(b) if the functions of the agency are acquired by more than 1 other
agency-any request made to the first-mentioned agency shall be taken to have
been made to, and any decision made by the first-mentioned agency in respect
of a request made to it shall be taken to have been made by, whichever of
those other agencies has acquired the functions of the first-mentioned agency
to which the document the subject of the request most closely relates; and
(c) if the documents of the agency are held by the Australian Archives on
behalf of the Territory-any request made to the agency shall be taken to have
been made to, and any decision made by the agency in respect of a request made
by it shall be taken to have been made by, the agency to the functions of
which the document the subject of the request most closely relates.
(5) If the agency to which a request is so taken to have been made, or by
which a decision upon request is so taken to have been made, was not itself in
existence at the time when the request or decision was taken so to have been
made, then, for the purposes only of dealing with that request or decision
under this Act, that agency shall be taken to have been in existence at that
time.
(6) For the purposes of this Act, where the Minister has, by notice in the
Gazette, declared that an application fee is applicable in respect of an
application under subsection 14 (1) or 59 (1), there shall be taken to be an
application fee in respect of the application.
(7) Where a person has nominated an address in Australia at which documents
may be served on the person, a document or statement that is required by this
Act to be given to the person may be sent to that address.
FREEDOM OF INFORMATION ACT 1989 - SECT 5 Act to apply to certain
tribunals in respect of administrative matters
5. The regulations may specify that-
(a) each tribunal, authority or body identified in the regulations is to be
taken to be a prescribed authority;
(b) the holder of an office pertaining to a tribunal, authority or body
identified in the regulations, being an office established by the enactment
establishing the tribunal, authority or body, is not, in his or her capacity
as the holder of that office, to be taken to be a prescribed authority or to
be included in an administrative unit; or
(c) a registry or other office of or under the charge of a tribunal,
authority or body declared by the regulations to be a prescribed authority,
and the staff of such a registry or other office when acting in a capacity as
members of that staff, shall be taken to be part of the tribunal, authority or
body;
but this Act does not apply to any request for access to a document of a
tribunal, authority or body so identified unless the document relates to
matters of an administrative nature.
FREEDOM OF INFORMATION ACT 1989 - SECT 6 Exemption of certain
bodies
6. The regulations may specify that-
(a) bodies identified in the regulations, or persons holding and performing
the duties of offices so identified, are not prescribed authorities for the
purposes of this Act; or
(b) agencies identified in the regulations are exempt from the operation of
this Act in relation to the documents referred to in the regulations in
relation to them.
FREEDOM OF INFORMATION ACT 1989 - PART II PART II-PUBLICATION OF
CERTAIN DOCUMENTS AND INFORMATION
FREEDOM OF INFORMATION ACT 1989 - SECT 7 Publication of information
concerning functions and documents of agencies
7. (1) The responsible Minister of an agency shall-
(a) cause to be published, as soon as practicable after the commencement of
this Act but not later than 12 months after that commencement, in a form
approved by the Minister-
(i) a statement setting out particulars of the organisation
and functions of the agency, indicating, as far as practicable, the
decision-making powers and other powers affecting members of the public that
are involved in those functions;
(ii) a statement setting out particulars of any arrangements
that exist for bodies or persons outside the Executive or agencies to
participate, either through consultative procedures, the making of
representations or otherwise, in the formulation of policy by the agency, or
in the administration by the agency of any enactment or scheme;
(iii) a statement of the categories of documents that are
maintained in the possession of the agency, being a statement that sets out,
as separate categories of documents, categories of such documents, if any, as
are referred to in subsection 11 (1) and categories of other documents, if
any, as are customarily made available to the public, otherwise than under
this Act, free of charge upon request;
(iv) a statement of particulars of the facilities, if any,
provided by the agency for enabling members of the public to obtain physical
access to the documents of the agency; and
(v) a statement of any information that needs to be available
to the public concerning particular procedures of the agency in relation to
Part III, and particulars of the officer to whom, and the place at which,
initial inquiries concerning access to documents may be directed; and
(b) during the year commencing on 1 January next following the publication,
in respect of the agency, of the statement under subparagraph (a) (i), (ii),
(iii), (iv) or (v) that is the first statement published under that
subparagraph, and during each succeeding year, cause to be published
statements bringing up to date the information contained in the statement
previously published under that subparagraph.
(2) In approving a form under subsection (1), the Minister shall have
regard, amongst other things, to the need to assist members of the public to
exercise effectively their rights under this Act.
(3) The information to be published in accordance with this section shall be
published by including it-
(a) in a report to be presented by the agency, or information to be provided
by the agency, under section 8 of the Annual Reports (Government Agencies) Act
1995; or
(b) if the agency is not required to present such a report or provide such
information-in the annual report to which the affairs of the agency relate.
(4) Nothing in this section requires the publication of information that is
of such a nature that its inclusion in a document of an agency would cause
that document to be an exempt document.
(5) Subsection (1) applies in relation to an agency that comes into
existence after the commencement of this Act as if the references in that
subsection to the commencement of this Act were references to the day on which
the agency comes into existence.
FREEDOM OF INFORMATION ACT 1989 - SECT 8 Certain documents to be
available for inspection and purchase
8. (1) This section applies, in respect of an agency, to documents that are
provided by the agency for the use of, or are used by, the agency or its
officers in making decisions or recommendations for the purposes of an
enactment or scheme administered by the agency, with respect to rights,
privileges or benefits, or to obligations, penalties or other detriments, to
which persons are or may be entitled or subject, being-
(a) manuals or other documents containing interpretations, rules,
guidelines, practices or precedents including, but without limiting the
generality of the foregoing, precedents in the nature of letters of advice
providing information to bodies or persons outside the Territory
administration;
(b) documents containing particulars of such a scheme, not being particulars
contained in an enactment as published apart from this Act;
(c) documents containing statements of the manner, or intended manner, of
administration or enforcement of such an enactment or scheme; or
(d) documents describing the procedures to be followed in investigating
breaches or evasions or possible breaches or evasions of such an enactment or
of the law relating to such a scheme;
but not including documents that are available to the public as published
otherwise than by an agency or as published by another agency.
(2) The principal officer of an agency shall-
(a) cause copies of all documents to which this section applies in respect
of the agency that are in use from time to time to be made available for
inspection and for purchase by members of the public;
(b) cause to be prepared, within 12 months after the commencement of this
Act, and as soon as practicable after preparation to be made available, for
inspection and for purchase by members of the public, a statement (which may
take the form of an index) specifying the documents copies of which are, at
the time of preparation of the statement, available in accordance with
paragraph (a) and the place or places where copies may be inspected and may be
purchased; and
(c) cause to be prepared, if possible within 3 months, and in any case not
later than 12 months, after the preparation of the last preceding statement
prepared in accordance with paragraph (b) or this paragraph, and as soon as
practicable after the preparation to be made available, for inspection and for
purchase by members of the public, a statement bringing up to date the
information contained in that last preceding statement.
(3) The principal officer is not required to comply fully with paragraph (2)
(a) within the period of 12 months after the commencement of this Act, but
shall, within that period, comply with that paragraph as far as is
practicable.
(4) This section does not require a document of the kind referred to in
subsection (1) containing exempt matter to be made available in accordance
with subsection (2), but, if such a document is not so made available, the
principal officer of the agency shall, if practicable, cause to be prepared a
corresponding document, altered only to the extent necessary to exclude the
exempt matter, and cause the document so prepared to be dealt with in
accordance with subsection (2).
(5) The report of the Minister under section 79 in respect of a year shall
include a statement concerning compliance by agencies with the requirements of
this section during that year.
(6) Where a person makes a request to inspect or to purchase a document of
an agency concerning a particular enactment or scheme, being a document of a
kind to which this section applies, the principal officer of the agency shall
take all reasonable steps to ensure that the attention of that person is drawn
to any document of the agency concerning that enactment or scheme that is
relevant to the request and has become a document to which this section
applies since the last occasion on which a statement in respect of documents
of the agency was prepared and made available in accordance with subsection
(2).
(7) Subsection (3) applies in relation to an agency that comes into
existence after the commencement of this Act as if the reference in that
subsection to the commencement of this Act were a reference to the day on
which the agency comes into existence.
FREEDOM OF INFORMATION ACT 1989 - SECT 9 Unpublished documents not
to prejudice public
9. (1) If a document required to be made available in accordance with
section 8, being a document containing a rule, guideline or practice relating
to a function of an agency was not made available as referred to in that
section, before the time at which a person did, or omitted to do, any act or
thing relevant to the performance of that function in relation to the person
(whether or not the time allowed for publication of a statement in respect of
the document had expired before that time), the person, if he or she was not
aware of that rule, guideline or practice at that time, shall not be subjected
to any prejudice only because of the application of that rule, guideline or
practice in relation to the thing done or omitted to be done by the person if
he or she could lawfully have avoided that prejudice had he or she been aware
of that rule, guideline or practice.
(2) The reference in subsection (1) to the time at which a person did, or
omitted to do, any act or thing relevant to the performance in relation to the
person of a function of an agency does not include a reference to a time
earlier than-
(a) the end of the period of 12 months referred to in paragraph 8 (2) (b);
or
(b) the end of the period of 12 months after the day on which the agency
came into existence;
whichever is the later.
FREEDOM OF INFORMATION ACT 1989 - PART III PART III-ACCESS TO
DOCUMENTS
FREEDOM OF INFORMATION ACT 1989 - SECT 10 Right of access
10. Subject to this Act, every person has a legally enforceable right to
obtain access in accordance with this Act to-
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
FREEDOM OF INFORMATION ACT 1989 - SECT 11 Part not to apply to
certain documents
11. (1) A person is not entitled to obtain access under this Part to-
(a) a document that is open to public access, as part of a public register
or otherwise, in accordance with another enactment, where that access is
subject to a fee or other charge;
(b) a document that is available for purchase by the public in accordance
with arrangements made by an agency; or
(c) library material maintained for reference purposes.
(2) A person is not entitled to obtain access under this Part to a document
or a part of a document that became a document of a Commonwealth agency or an
official document of a Commonwealth Minister before 1 January 1977 unless-
(a) the document or that part of the document contains information relating
to the personal affairs of that person; or
(b) the document or that part of the document is a document or a part of a
document access to which is reasonably necessary to enable a proper
understanding of a document of an agency or an official document of a Minister
to which that person has lawfully had access.
(3) Regulations may be made modifying subsection (2) so as to enable a
person to obtain access under this Part to documents to which, but for the
making of those regulations, the person would not be entitled to access
because of that subsection.
(4) References in subsection (3) to subsection (2) include references to
subsection (2) as previously modified under regulations made under subsection
(3).
FREEDOM OF INFORMATION ACT 1989 - SECT 12 Documents in Australian
Archives
12. (1) For the purposes of this Act, a document that has been placed in the
custody of the Australian Archives by an agency shall be taken to be in the
possession of that agency or, if that agency no longer exists, the agency to
the functions of which the document is most closely related.
(2) For the purposes of this Act, a document that:
(a) becomes the property of the Territory by virtue of section 5 of the
A.C.T. Self-Government (Consequential Provisions) Act 1988 of the
Commonwealth; and
(b) before the commencement of this Act, was placed in the custody of the
Australian Archives;
shall be taken to be in the possession of the agency to the functions of which
the document is most closely related.
FREEDOM OF INFORMATION ACT 1989 - SECT 13 Access to documents apart
from Act
13. Nothing in this Act is intended to prevent or discourage Ministers and
agencies from publishing or giving access to documents (including exempt
documents) otherwise than as required by this Act where they can properly do
so or are required by law to do so.
FREEDOM OF INFORMATION ACT 1989 - SECT 14 Requests for access
14. (1) A person who wishes to obtain access to a document of an agency or
an official document of a Minister may, by application in writing to the
agency or Minister accompanied by any application fee in respect of the
application, request access to the document.
(2) A request shall provide such information concerning the document as is
reasonably necessary to enable a responsible officer of the agency, or the
Minister, as the case may be, to identify the document.
(3) Where a person-
(a) wishes to make a request to an agency; or
(b) has made a request to an agency that does not comply with this section;
it is the duty of the agency to take reasonable steps to assist the person to
make the request in a manner that complies with this section.
(4) Where a person has directed to an agency a request that should have been
directed to another agency or to a Minister, it is the duty of the
first-mentioned agency to take reasonable steps to assist the person to direct
the request to the appropriate agency or Minister.
(5) Where-
(a) a person requests access to a document under this section;
(b) the request is not accompanied by any application fee; and
(c) the request is accompanied by an application for remission under section
30 of any relevant fee;
the request for access is to be taken to be in accordance with this section
unless and until the agency has taken all reasonable steps to notify the
applicant that the fee is not to be remitted in full.
FREEDOM OF INFORMATION ACT 1989 - SECT 15 Transfer of requests
15. (1) Where a request is made to an agency for access to a document and-
(a) the document is not in the possession of that agency but is, to the
knowledge of that agency, in the possession of another agency; or
(b) the subject-matter of the document is more closely connected with the
functions of another agency than with those of the agency to which the request
is made;
the agency to which the request is made may, with the agreement of the other
agency, transfer the request to the other agency.
(2) Where a request is made to an agency for access to a document that-
(a) originated with, or has been received from, a body to which, or a person
to whom, regulations made for the purposes of paragraph 6 (a) apply; and
(b) is more closely connected with the functions of that body or person than
with those of the agency to which the request is made;
the request shall be transferred to the administrative unit responsible for
the administration of the enactment by or under which the body or person is
established, continued in existence or appointed.
(3) Where a request is made to an agency for access to a document that-
(a) originated in, or has been received from, another agency, being an
agency to which the regulations made for the purposes of paragraph 6 (b)
apply; and
(b) is more closely connected with the functions of the other agency in
relation to documents in respect of which the other agency is exempt from the
operation of this Act than with the functions of the agency to which the
request is made;
the agency to which the request is made shall transfer the request to the
other agency.
(4) Where a request is transferred to an agency in accordance with this
section, the agency making the transfer shall inform the person making the
request accordingly and, if it is necessary to do so in order to enable the
other agency to deal with the request, send the document to the other agency.
(5) Where a request is transferred to an agency in accordance with this
section, it shall be taken to be a request made to that agency and received at
the time at which it was originally received.
(6) In this section, "agency" includes a Minister.
FREEDOM OF INFORMATION ACT 1989 - SECT 16 Requests involving use of
computers etc.
16. (1) Where-
(a) a request (including a request of the kind described in subsection 23
(1)) is made in accordance with the requirements of subsection 14 (2) to an
agency or to a Minister;
(b) it appears from the request that the desire of the applicant is for
information that is not available in discrete form in documents of the agency
or in official documents of the Minister, as the case may be; and
(c) the agency or the Minister, as the case may be, could produce a written
document containing the information in discrete form by-
(i) the use of a computer or other equipment that is
ordinarily available to the agency or ordinarily available in an office of the
Minister, as the case may be, for retrieving or collating stored information;
or
(ii) the making of a transcript from a sound recording held in
the agency or in an office of the Minister, as the case may be;
the agency or the Minister, as the case may be, shall deal with the request as
if it were a request for access to a written document so produced and
containing that information and, for that purpose, this Act applies as if the
agency or the Minister, as the case may be, were in possession of such a
document.
(2) An agency or a Minister is not required to comply with subsection (1) if
compliance would substantially and unreasonably divert the resources of the
agency, or of an office of the Minister, as the case may be, from its other
operations.
FREEDOM OF INFORMATION ACT 1989 - SECT 17 Access to documents to
be given on request
17. (1) Subject to this Act, where-
(a) a request is made in accordance with subsection 14 (2) by a person to an
agency or Minister for access to a document of the agency or an official
document of the Minister; and
(b) any charge that, under a determination in force under section 80, is
required to be paid before access is granted has been paid;
the person shall be given access to the document in accordance with this Act.
(2) An agency or Minister is not required by this Act to give access to a
document at a time when the document is an exempt document.
FREEDOM OF INFORMATION ACT 1989 - SECT 18 Time within which
requests to be decided
18. (1) If a request for access to a document that is made to an agency or
Minister-
(a) is expressed to be made under this Act; and
(b) is sent by post to the agency or Minister, or delivered to an officer of
the agency or a member of the staff of the Minister, at the appropriate
address of the agency or the Minister;
the agency or Minister shall take all reasonable steps to ensure that-
(c) the applicant is notified of the day on which the request was received
by or on behalf of the agency or Minister as soon as practicable but in any
case not later than 14 days after the day on which it was so received; and
(d) the applicant is notified of a decision on the request (including a
decision under section 20 to defer the provision of access to a document) as
soon as practicable but in any case not later than 30 days after the day on
which the request is received by or on behalf of the agency or Minister.
(2) In subsection (1), "appropriate address", in relation to an agency or a
Minister, means an address of that agency or of that Minister that is
specified in a notice (being a notice that is in force at the time of the
request) published in the Gazette by the responsible Minister of the agency or
by the Minister, as the case may be, as an address to which requests made
under this Act may be sent or delivered in accordance with this section.
(3) Where-
(a) a request has been made to an agency or to a Minister for access to a
document; and
(b) that agency or that Minister, as the case may be, determines in writing
that the requirements of section 26 or 27 make it appropriate to extend the
period of 30 days referred to in subsection (1);
that period in relation to that request shall be extended by 15 days.
(4) Where an agency or a Minister makes a determination in writing under
subsection (3) in relation to a request, that agency or Minister shall, as
soon as possible, inform the applicant of the extension.
FREEDOM OF INFORMATION ACT 1989 - SECT 19 Forms of access
19. (1) Access to a document may be given to a person in 1 or more of the
following forms:
(a) a reasonable opportunity to inspect the document;
(b) provision of a copy of the document;
(c) if the document is an article or thing from which sounds or visual
images are capable of being reproduced-the making of arrangements for the
person to hear or view those sounds or visual images;
(d) if the document is one by which words are recorded in a manner in which
they are capable of being reproduced in the form of sound or in which words
are contained in the form of shorthand writing or in codified form-provision
of a written transcript of the words recorded or contained in the document.
(2) Subject to subsection (3) and to section 21, where the applicant has
requested access in a particular form, access shall be given in that form.
(3) If the giving of access in the form requested by the applicant-
(a) would interfere unreasonably with the operations of the agency, or the
performance by the Minister of his or her functions;
(b) would be detrimental to the preservation of the document or, having
regard to the physical nature of the document, would not be appropriate; or
(c) would, but for this Act, involve an infringement of copyright (other
than copyright owned by the Territory or an agency) subsisting in matter
contained in the document, being matter that does not relate to the affairs of
an agency;
access in that form may be refused and access given in another form.
(4) Subject to subsection 16 (1), where a person requests access to a
document in a particular form and, for a reason specified in subsection (3),
access in that form is refused but access is given in another form, the
applicant shall not be required to pay a charge in respect of the provision of
access to the document that is greater than the charge that the applicant
would have been required to pay if access had been given in the form
requested.
FREEDOM OF INFORMATION ACT 1989 - SECT 20 Deferment of access
20. (1) An agency which, or a Minister who, receives a request may defer the
provision of access to the document concerned-
(a) if the publication of the document concerned is required by law-until
the end of the period within which the document is required to be published;
(b) if the document concerned has been prepared for presentation to the
Legislative Assembly or for the purpose of being made available to a
particular person or body or with the intention that it should be so made
available-until the end of a reasonable period after its preparation for it to
be so presented or made available;
(c) if the premature release of the document concerned would be contrary to
the public interest-until the occurrence of any event after which or the end
of any period of time beyond which the release of the document would not be
contrary to the public interest; or
(d) if a Minister considers that the document concerned is of such general
public interest that the Legislative Assembly should be informed of the
contents of the document before the document is otherwise made public-until
the end of 5 sitting days of the Legislative Assembly after the Legislative
Assembly is so informed.
(2) Where the provision of access to a document is deferred in accordance
with subsection (1), the agency or Minister shall, in informing the applicant
of the reasons for the decision, indicate, as far as practicable, the period
for which the deferment will operate.
(3) Subsection 60 (1) does not apply in relation to a deferment under
paragraph (1) (d) of this section.
FREEDOM OF INFORMATION ACT 1989 - SECT 21 Deletion of exempt matter
21. (1) Where-
(a) a decision is made not to grant a request for access to a document on
the ground that it is an exempt document;
(b) it is possible for the agency or Minister to make a copy of the document
with such deletions that the copy would not be an exempt document and would
not, because of the deletions, be misleading; and
(c) it is reasonably practicable for the agency or Minister, having regard
to the nature and extent of the work involved in deciding on and making those
deletions and the resources available for that work, to make such a copy;
the agency or Minister shall, unless it is apparent from the request or as a
result of consultation by the agency or Minister with the applicant, that the
applicant would not wish to have access to such a copy, make, and grant access
to, such a copy.
(2) Where access is granted to a copy of a document in accordance with
subsection (1)-
(a) the applicant shall be informed-
(i) that it is such a copy; and
(ii) of the provision of this Act by virtue of which any
matter deleted is exempt matter; and
(b) section 25 does not apply to the decision that the applicant is not
entitled to access to the whole of the document unless the applicant requests
the agency or Minister to give to the applicant a notice in writing in
accordance with that section.
FREEDOM OF INFORMATION ACT 1989 - SECT 22 Decisions to be made by
authorised persons
22. A decision in respect of a request made to an agency may be made, on
behalf of the agency, by the responsible Minister or the principal officer of
the agency or, subject to the regulations, by an officer of the agency acting
within the scope of authority exercisable by the officer in accordance with
arrangements approved by the responsible Minister or the principal officer of
the agency.
FREEDOM OF INFORMATION ACT 1989 - SECT 23 Requests may be refused
in certain cases
23. (1) Where-
(a) a request is expressed to relate to all documents, or to all documents
of a specified class, that contain information of a specified kind or relate
to a specified subject matter; and
(b) the agency or Minister dealing with the request is satisfied that, apart
from this subsection, the work involved in giving access to all the documents
to which the request relates would substantially and unreasonably divert the
resources of the agency from its other operations or would interfere
substantially and unreasonably with the performance by the Minister of his or
her functions, as the case may be, having regard to the number and volume of
the documents and to any difficulty that would exist in identifying, locating
or collating the documents within the filing system of the agency or of the
office of the Minister;
the agency or Minister may refuse to grant access to the documents in
accordance with the request without having caused those processes to be
undertaken.
(2) Where, in respect of a request of a kind referred to in paragraph (1)
(a), it is apparent from the nature of the documents as described in the
request that all of the documents to which the request is expressed to relate
are exempt documents and that no obligation would arise under section 21 in
relation to any of those documents to grant access to a copy of the document
with deletions, the agency or Minister may refuse to grant access to the
documents in accordance with the request without having identified any or all
of the documents to which the request relates and without specifying, in
respect of each document, the provision of this Act under which that document
is claimed to be an exempt document.
(3) An agency or Minister shall not refuse to grant access to a document in
accordance with a request-
(a) on the ground that the request does not comply with subsection 14 (2);
or
(b) in accordance with subsection (1);
without first giving the applicant a reasonable opportunity of consultation
with a view to the making of the request in a form that would remove the
ground for refusal.
FREEDOM OF INFORMATION ACT 1989 - SECT 24 Information as to
existence of certain documents
24. (1) Nothing in this Act shall be taken to require an agency or Minister
to give information as to the existence or non-existence of a document where
that information, if included in a document of an agency, would cause the
last-mentioned document to be an exempt document under section 34 or
subsection 37 (1).
(2) Where a request relates to a document that is, or if it existed would
be, of a kind referred to in subsection (1), the agency or Minister dealing
with the request may give notice in writing to the applicant that the agency
or the Minister, as the case may be, 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 under section
34 or subsection 37 (1) and, where such a notice is given-
(a) section 25 applies as if the decision to give such a notice were a
decision referred to in that section; and
(b) the decision shall, for the purposes of Part VII, be taken to be a
decision refusing to grant access to the document in accordance with the
request for the reason that the document would, if it existed, be an exempt
document under section 34 or subsection 37 (1).
FREEDOM OF INFORMATION ACT 1989 - SECT 25 Reasons and other
particulars of decisions to be given
25. (1) Where, in relation to a request, a decision is made relating to a
refusal to grant access to a document in accordance with the request or
deferring provision of access to a document, the decision-maker shall cause
the applicant to be given notice in writing of the decision-
(a) stating the findings on any material questions of fact, referring to the
material on which those findings were based, and stating the reasons for the
decision;
(b) where the decision relates to a document of an agency-stating the name
and the designation of the person giving the decision; and
(c) giving to the applicant appropriate information concerning-
(i) his or her rights with respect to review of the decision;
(ii) his or her rights to make a complaint to the Ombudsman in
relation to the decision; and
(iii) the procedure for the exercise of those rights;
including (where applicable) particulars of the manner in which an application
for review under section 59 may be made.
(2) Section 13 of the Administrative Decisions (Judicial Review) Act 1989
does not apply to a decision referred to in subsection (1).
(3) A notice under this section is not required to contain any matter that
is of such a nature that its inclusion in a document of an agency would cause
that document to be an exempt document.
FREEDOM OF INFORMATION ACT 1989 - SECT 26 Procedure on request in
respect of documents likely to affect relations between the Territory
and the Commonwealth or a State
26. (1) Where arrangements have been entered into between the Territory and
the Commonwealth or the Territory and a State with regard to consultation
under this section and it appears that-
(a) a document that is the subject of a request originated with, or was
received from, or contains information that originated with, or was received
from, the Commonwealth or the State or an authority of the Commonwealth or the
State; and
(b) the Commonwealth or the State may reasonably wish to contend that the
document is an exempt document under section 34;
a decision to grant access to the document shall not be made by the agency or
Minister concerned unless consultation has taken place between the Territory
and the Commonwealth or the Territory and the State in accordance with those
arrangements.
(2) Where, after consultation between the Territory and the Commonwealth or
the Territory and a State as mentioned in subsection (1) in relation to a
document, a decision is made that the document is not an exempt document under
section 34 or under any other provision of this Act-
(a) the agency or Minister making the decision shall, in accordance with the
arrangements, cause notice in writing of the decision to be given to the
Commonwealth or the State, as the case may be, as well as to the person who
made the request; and
(b) access shall not be given to the document or, in the case of a document
that contains information that originated with or was received from the
Commonwealth, the State or an authority of the Commonwealth or the State, to
the document so far as it contains that information, unless-
(i) the time for an application to the Tribunal by the
Commonwealth or the State in accordance with section 68 for review of the
decision that the document is not an exempt document under section 34 has
expired and such an application has not been made; or
(ii) such an application has been made and the Tribunal has
confirmed the decision.
FREEDOM OF INFORMATION ACT 1989 - SECT 27 Procedure on request in
respect of document relating to business affairs etc.
27. (1) Where-
(a) a request is received by an agency or Minister in respect of a document
containing information concerning a person in respect of the person's business
or professional affairs or concerning the business, commercial or financial
affairs of an organisation or undertaking; and
(b) it appears to the officer or Minister dealing with the request, or to a
person reviewing under section 59 a decision refusing the request, that the
person or organisation, or the proprietor of the undertaking, referred to in
paragraph (a) might reasonably wish to contend that the document is an exempt
document under section 43;
a decision to grant access under this Act to the document, so far as it
contains the information referred to in paragraph (a), shall not be made
unless, where it is reasonably practicable to do so having regard to all the
circumstances, including the application of section 18-
(c) the agency or Minister has given to that person or organisation or the
proprietor of that undertaking a reasonable opportunity of making submissions
in support of a contention that the document is an exempt document under
section 43; and
(d) the person making the decision has had regard to any submissions so
made.
(2) Where, after any submissions have been made in accordance with
subsection (1), a decision is made that the document, so far as it contains
the information referred to in paragraph (1) (a), is not an exempt document
under section 43-
(a) the agency or Minister shall cause notice in writing of the decision to
be given to the person who made the submissions, as well as to the person who
made the request; and
(b) access shall not be given to the document, so far as it contains the
information referred to in paragraph (1) (a), unless-
(i) the time for an application to the Tribunal by that person
in accordance with section 69 has expired and such an application has not been
made; or
(ii) such an application has been made and the Tribunal has
confirmed the decision.
FREEDOM OF INFORMATION ACT 1989 - SECT 28 Persons to be notified
of liability to pay charges
28. Where, in accordance with a determination in force under section 80, an
agency or Minister makes a decision that an applicant is liable to pay a
charge (not being an application fee) in respect of a request for access to a
document or in respect of the provision of access to a document, the agency or
Minister shall notify the applicant, in writing, accordingly, and shall give
to the applicant, together with that notification, a statement setting out the
basis on which the amount of that charge is calculated.
FREEDOM OF INFORMATION ACT 1989 - SECT 29 Charge may be remitted
29. (1) An applicant may make application, in writing, to the agency to
which or the Minister to whom the applicant made a request seeking the total
or partial remission of any charge paid by the applicant, or notified as being
a charge that the applicant is liable to pay, in respect of that request or in
respect of the provision of access to a document to which the request relates.
(2) Where an application is made under subsection (1), the agency or
Minister-
(a) may remit the charge to which the application relates in whole or in
part; and
(b) shall take all reasonable steps to enable the applicant to be notified
of a decision on the application as soon as practicable but in any case not
later than 28 days after the day on which the application was received by or
on behalf of the agency or Minister.
(3) Without limiting the matters which the agency or Minister may take into
account for the purpose of determining whether or not to remit a charge under
subsection (2), the agency or Minister shall take into account-
(a) whether the payment of the charge or of any part of the charge would
cause or has caused financial hardship to the applicant or to a person on
whose behalf the application was made;
(b) whether the document to which the applicant seeks access relates to the
personal affairs of the applicant or a person on whose behalf the application
was made; and
(c) whether the giving of access is in the general public interest or in the
interest of a substantial section of the public.
(4) Where-
(a) an application has been made to an agency or Minister under subsection
(1); and
(b) notice of a decision on the application has not been received by the
applicant within the period of 28 days commencing on the day on which the
application was received by or on behalf of the agency or Minister;
the principal officer of the agency, or the Minister, as the case requires,
shall be taken to have made, on the last day of that period, a decision
refusing to make the total or partial remission of the charge to which the
application relates that was sought in that application.
(5) In this section, "charge" means a charge that an applicant is notified
under section 28 that the applicant is liable to pay in respect of a request
for access to a document or in respect of the provision of access to a
document.
FREEDOM OF INFORMATION ACT 1989 - SECT 30 Remission of application
fees
30. (1) Where-
(a) there is an application fee in respect of an application to an agency or
Minister under subsection 14 (1) requesting access to a document or under
subsection 59 (1) requesting a review of a decision relating to a document
(whether or not the fee has been paid); and
(b) the agency or Minister is satisfied that-
(i) the payment of the fee or of a part of the fee would cause
or has caused financial hardship to the applicant or to a person on whose
behalf the application was made;
(ii) the document relates to the personal affairs of the
applicant or to a person on whose behalf the application was made; or
(iii) the giving of access is in the general public interest
or in the interest of a substantial section of the public;
the agency or Minister may remit the fee or part of the fee.
(2) Where the whole or part of an application fee is remitted under
subsection (1), then, to the extent of the remission, there shall not, for the
purposes of subsection 14 (1) or 59 (1), as the case may be, be taken to be an
application fee in respect of the application.
FREEDOM OF INFORMATION ACT 1989 - SECT 31 Period under section 18
to be extended in certain cases
31. (1) Where an applicant receives a notification under section 28 before
the end of 30 days after the day on which the request was received by or on
behalf of an agency or a Minister, being a notification that the applicant is
liable to pay a specified charge in respect of that request, section 18
applies to the request as if the period of 30 days referred to in subsection
18 (1) were extended by the period commencing on the day on which that
notification is received by the applicant and ending on the day that is, under
subsection (2), the relevant day in relation to that request.
(2) For the purposes of subsection (1), the relevant day in relation to a
request made by an applicant to whom a notification has been given under
section 28 setting out the applicant's liability to pay a specified charge
is-
(a) if the applicant pays the charge, or such deposit on account of the
charge as the applicant is required to pay under a determination in force
under section 80 (whether or not the applicant first seeks a remission of the
charge under section 29 or a review of the decision in respect of the charge
under section 60)-the day on which that charge or deposit is so paid;
(b) if the applicant, not having paid the charge or deposit referred to in
paragraph (a), makes an application under section 29 for the total or partial
remission of the charge-
(i) if a decision is made upon that application to remit the
whole of the charge-the day on which the applicant is notified under that
section of that decision; or
(ii) if a decision is made on that application to remit part
of the charge-the day on which the applicant pays the charge as so remitted or
such deposit on account of the charge as so remitted as the applicant is
required to pay under a determination in force under section 80; or
(c) if the applicant, not having paid the charge or deposit referred to in
paragraph (a), makes an application to the Tribunal under section 60 for a
review of the decision referred to in section 28-
(i) if a decision is made by the Tribunal setting aside the
decision referred to in section 28-the day on which the applicant is notified
by the Tribunal of that decision; or
(ii) if the Tribunal sets aside the decision referred to in
section 28 and makes another decision in substitution for that decision-the
day on which the applicant pays the charge specified in the substituted
decision or such deposit on account of that charge as the applicant is
required to pay under a determination in force under section 80.
FREEDOM OF INFORMATION ACT 1989 - PART IV PART IV-EXEMPT DOCUMENTS
FREEDOM OF INFORMATION ACT 1989 - SECT 32 Interpretation
32. A provision of this Part under which documents referred to in the
provision are exempt documents-
(a) shall not be construed as limited in its scope or operation in any way
by any other provision of this Part under which documents are exempt
documents; and
(b) shall not be construed as not applying to a particular document because
another provision of this Part of a kind mentioned in paragraph (a) also
applies to that document.
FREEDOM OF INFORMATION ACT 1989 - SECT 33 Documents exempt under
Commonwealth Act
33. (1) Where-
(a) a request is made to an agency or a Minister for access to a document;
(b) the principal officer of the agency, or the Minister, has reasonable
grounds to believe that the document would, if it were in the possession of a
Commonwealth agency, be an exempt document under section 33, 33A, 34, 35, 39,
44 or 47 of the Freedom of Information Act 1982 of the Commonwealth;
the document is an exempt document and the principal officer or the Minister
shall transfer the request to the Commonwealth agency whose functions are most
closely related to the subject of the request and send the document to that
agency.
(2) Where a document is so transferred, the principal officer shall notify
the applicant of the transfer.
FREEDOM OF INFORMATION ACT 1989 - SECT 34 Documents affecting
relations with Commonwealth and States
34. (1) Subject to subsection (5), a document is an exempt document if
disclosure of the document under this Act-
(a) would, or could reasonably be expected to, cause damage to relations
between the Territory and the Commonwealth or the Territory and a State; or
(b) would divulge information or matter communicated in confidence by or on
behalf of the Commonwealth, a State or an authority of the Commonwealth or of
a State to the Territory, to a Territory authority or to a person receiving
the communication on behalf of the Territory or of a Territory authority.
(2) Where a Minister is satisfied that a document is an exempt document for
a reason referred to in subsection (1), the Minister may sign a certificate to
that effect specifying that reason and, subject to Part VII, such a
certificate, so long as it remains in force, establishes conclusively that the
document is an exempt document.
(3) Where a Minister is satisfied as mentioned in subsection (2) only
because of matter contained in a particular part of a document, a certificate
under that subsection in respect of the document shall identify that part of
the document as containing that matter.
(4) Where a Minister is satisfied that information as to the existence or
non-existence of a document as described in a request would, if contained in a
document of an agency, cause the last-mentioned document to be an exempt
document under this section because of a reason referred to in subsection (1),
the Minister may sign a certificate to that effect, specifying that reason.
(5) This section does not apply to a document in respect of matter in a
document the disclosure of which under this Act would, on balance, be in the
public interest.
(6) The responsible Minister of an agency may, by signed instrument,
delegate to the principal officer of the agency the Minister's powers under
this section in respect of documents of the agency.
FREEDOM OF INFORMATION ACT 1989 - SECT 35 Executive documents
35. (1) A document is an exempt document if it is-
(a) a document that has been submitted to the Executive for its
consideration or is proposed by a Minister to be so submitted, being a
document that was brought into existence for the purpose of submission for
consideration by the Executive;
(b) an official record of the Executive;
(c) a document that is a copy of, or of a part of, or contains an extract
from, a document referred to in paragraph (a) or (b); or
(d) a document the disclosure of which would involve the disclosure of any
deliberation or decision of the Executive, other than a document by which a
decision of the Executive was officially published.
(2) This section does not apply to a document (in this subsection called a
"relevant document")-
(a) that is referred to in paragraph (1) (a); or
(b) that is referred to in paragraph (1) (b) or (c) and is a copy of, or of
part of, or contains an extract from, a document that is referred to in
paragraph (1) (a); to the extent that the relevant document contains purely
factual material unless-
(c) the disclosure under this Act of that document would involve the
disclosure of any deliberation or decision of the Executive; and
(d) the fact of that deliberation or decision has not been officially
published.
(3) For the purposes of this Act, a certificate signed by the Chief
Executive who has control of the administrative unit to which responsibility
for the co-ordination of government administration is allocated under section
14 of the Public Sector Management Act 1994 certifying that a document is of a
kind referred to in a paragraph of subsection (1) establishes conclusively,
subject to Part VII, that it is an exempt document of that kind.
(4) Where a document is a document referred to in paragraph (1) (c) or (d)
only because of matter contained in a particular part of the document, a
certificate under subsection (3) in respect of the document shall identify
that part of the document as containing that matter.
(5) For the purposes of this Act, a certificate signed by the Chief
Executive who has control of the administrative unit to which responsibility
for the co-ordination of government administration is allocated under section
14 of the Public Sector Management Act 1994 certifying that a document as
described in a request would, if it existed, be of a kind referred to in a
paragraph of subsection (1) establishes conclusively, subject to Part VII,
that, if such a document exists, it is an exempt document of that kind.
(6) Where a certificate under subsection (5) has been signed in respect of a
document as described in a request, the decision on the request may be a
decision that access to a document as described in the request is refused on
the ground that, if such a document existed, it would be an exempt document
referred to in the paragraph of subsection (1) that is specified in the
certificate.
(7) A reference in this section to the Executive includes a reference to a
Committee of the Executive.
FREEDOM OF INFORMATION ACT 1989 - SECT 36 Internal working documents
36. (1) Subject to this section, a document is an exempt document if its
disclosure under this Act-
(a) would disclose matter in the nature of, or relating to, opinion, advice
or recommendation obtained, prepared or recorded, or consultation or
deliberation that has taken place, in the course of, or for the purposes of,
the deliberative processes involved in the functions of an agency or Minister
or of the Territory; and
(b) would be contrary to the public interest.
(2) In the case of a document of the kind referred to in subsection 8 (1),
the matter referred to in paragraph (1) (a) of this section does not include
matter that is used or to be used for the purpose of the making of decisions
or recommendations referred to in subsection 8 (1).
(3) Where a Minister is satisfied, in relation to a document to which
paragraph (1) (a) applies, that the disclosure of the document would be
contrary to the public interest, the Minister may sign a certificate to that
effect, specifying the ground of public interest in relation to which the
certificate is given and, subject to Part VII, such a certificate, so long as
it remains in force, establishes conclusively that the disclosure of that
document would be contrary to the public interest.
(4) Where a Minister is satisfied as mentioned in subsection (3) only
because of matter contained in a particular part of a document, a certificate
under that subsection in respect of the document shall identify that part of
the document as containing that matter.
(5) This section does not apply to a document only because of purely factual
material contained in the document.
(6) This section does not apply to-
(a) reports (including reports concerning the results of studies, surveys or
tests) of scientific or technical experts, whether employed within an agency
or not, including reports expressing the opinions of such experts on
scientific or technical matters;
(b) reports of a prescribed body or organisation established within an
agency; or
(c) the record of, or a formal statement of the reasons for, a final
decision given in the exercise of a power or of an adjudicative function.
(7) Where a decision is made under Part III that an applicant is not
entitled to access to a document because of this section, the notice under
section 25 shall state the ground of public interest on which the decision is
based.
(8) The responsible Minister of an agency may, by signed instrument,
delegate to the principal officer of the agency the Minister's powers under
this section in respect of documents of the agency.
FREEDOM OF INFORMATION ACT 1989 - SECT 37 Documents affecting
enforcement of the law and protection of public safety
37. (1) A document is an exempt document if its disclosure under this Act
would, or could reasonably be expected to-
(a) prejudice the conduct of an investigation of a breach, or possible
breach, of the law, or a failure, or possible failure, to comply with a law
relating to taxation or prejudice the enforcement or proper administration of
the law in a particular instance;
(b) disclose, or enable a person to ascertain, the existence or identity of
a confidential source of information in relation to the enforcement or
administration of the law; or
(c) endanger the life or physical safety of any person.
(2) A document is an exempt document if its disclosure under this Act would,
or could reasonably be expected to-
(a) prejudice the fair trial of a person or the impartial adjudication of a
particular case;
(b) disclose lawful methods or procedures for preventing, detecting,
investigating, or dealing with matters arising out of, breaches or evasions of
the law the disclosure of which would, or could reasonably be expected to,
prejudice the effectiveness of those methods or procedures; or
(c) prejudice the maintenance or enforcement of lawful methods for the
protection of public safety.
(3) In subsections (1) and (2), "law" means a law in force in Australia.
FREEDOM OF INFORMATION ACT 1989 - SECT 38 Documents to which
secrecy provisions of enactments apply
38. A document is an exempt document if there is in force an enactment
applying specifically to information of a kind contained in the document and
prohibiting persons referred to in the enactment from disclosing information
of that kind, whether the prohibition is absolute or is subject to exceptions
or qualifications.
FREEDOM OF INFORMATION ACT 1989 - SECT 39 Documents affecting
financial or property interests of the Territory
39. (1) Subject to subsection (2), a document is an exempt document if its
disclosure under this Act would have a substantial adverse effect on the
financial or property interests of the Territory or of an agency.
(2) This section does not apply to a document the disclosure of matter in
which under this Act would, on balance, be in the public interest.
FREEDOM OF INFORMATION ACT 1989 - SECT 40 Documents concerning
certain operations of agencies
40. (1) Subject to subsection (2), a document is an exempt document if its
disclosure under this Act would, or could reasonably be expected to-
(a) prejudice the effectiveness of procedures or methods for the conduct of
tests, examinations or audits by an agency;
(b) prejudice the attainment of the objects of particular tests,
examinations or audits conducted or to be conducted by an agency;
(c) have a substantial adverse effect on the management or assessment of
personnel by the Territory or by an agency;
(d) have a substantial adverse effect on the proper and efficient conduct of
the operations of an agency; or
(e) have a substantial adverse effect on the conduct by or on behalf of the
Territory or an agency of industrial relations.
(2) This section does not apply to a document the disclosure of matter in
which under this Act would, on balance, be in the public interest.
FREEDOM OF INFORMATION ACT 1989 - SECT 41 Documents affecting
personal privacy
41. (1) A document is an exempt document if its disclosure under this Act
would involve the unreasonable disclosure of information relating to the
personal affairs of any person (including a deceased person).
(2) Subject to subsection (3), subsection (1) does not apply to a request by
a person for access to a document only because of the inclusion in the
document of matter relating to that person.
(3) Where-
(a) a request is made to an agency or Minister for access to a document of
the agency, or an official document of the Minister, that contains information
of a medical or psychiatric nature concerning the person making the request;
and
(b) it appears to the principal officer of the agency, or to the Minister,
as the case may be, that the disclosure of the information to that person
might be prejudicial to the physical or mental health or well-being of that
person;
the principal officer or Minister may direct that access to the document, so
far as it contains that information, that would otherwise be given to that
person is not to be given to that person but is to be given instead to a
medical practitioner to be nominated by that person.
FREEDOM OF INFORMATION ACT 1989 - SECT 42 Documents subject to
legal professional privilege
42. (1) A document is an exempt document if it is of such a nature that it
would be privileged from production in legal proceedings on the ground of
legal professional privilege.
(2) A document of the kind referred to in subsection 8 (1) is not an exempt
document under subsection (1) of this section only because of the inclusion in
the document of matter that is used or to be used for the purpose of the
making of decisions or recommendations referred to in subsection 8 (1).
FREEDOM OF INFORMATION ACT 1989 - SECT 43 Documents relating to
business affairs etc.
43. (1) A document is an exempt document if its disclosure under this Act
would disclose-
(a) trade secrets;
(b) any other information having a commercial value that would be, or could
reasonably be expected to be, destroyed or diminished if the information were
disclosed; or
(c) information (other than trade secrets or information to which paragraph
(b) applies) concerning a person in respect of his or her business or
professional affairs or concerning the business, commercial or financial
affairs of an organisation or undertaking, being information-
(i) the disclosure of which would, or could reasonably be
expected to, unreasonably affect that person adversely in respect of his or
her lawful business or professional affairs or that organisation or
undertaking in respect of its lawful business, commercial or financial
affairs; or
(ii) the disclosure of which under this Act could reasonably
be expected to prejudice the future supply of information to the Territory or
an agency for the purpose of the administration of a law or the administration
of matters administered by an agency.
(2) Subsection (1) does not apply to a request by a person for access to a
document-
(a) only because of the inclusion in the document of information concerning
that person in respect of his or her business or professional affairs;
(b) only because of the inclusion in the document of information concerning
the business, commercial or financial affairs of an undertaking where the
person making the request is the proprietor of the undertaking or a person
acting on behalf of the proprietor; or
(c) only because of the inclusion in the document of information concerning
the business, commercial or financial affairs of an organisation where the
person making the request is the organisation or a person acting on behalf of
the organisation.
(3) A reference in this section to an undertaking includes a reference to an
undertaking that is carried on by, or by an authority of, the Territory, the
Commonwealth, a State or by a local government authority.
FREEDOM OF INFORMATION ACT 1989 - SECT 44 Documents affecting
economy
44. (1) A document is an exempt document if its disclosure under this Act
would be contrary to the public interest because it-
(a) would, or could reasonably be expected to, have a substantial adverse
effect on the ability of the Government of the Territory to manage the economy
of the Territory; or
(b) could reasonably be expected to result in an undue disturbance of the
ordinary course of business in the community, or an undue benefit or detriment
to any person or persons, by giving premature knowledge of or concerning
proposed or possible action or inaction of the Government of the Territory or
the Legislative Assembly.
(2) The kinds of documents to which subsection (1) may apply include, but
are not limited to, documents containing matter relating to-
(a) a fee or charge;
(b) any kind of tax or duty;
(c) proposals for expenditure; or
(d) borrowings or proposals to borrow by the Territory or an agency.
FREEDOM OF INFORMATION ACT 1989 - SECT 45 Documents containing
material obtained in confidence
45. (1) A document is an exempt document if its disclosure under this Act
would constitute a breach of confidence.
(2) Subsection (1) does not apply to any document to the disclosure of which
paragraph 36 (1) (a) applies or would, but for subsection 36 (2), (5) or (6),
apply, being a document prepared by-
(a) a Minister;
(b) a member of the staff of a Minister or an officer of an agency in the
course of his or her duties; or
(c) a prescribed authority in the performance of its functions;
for purposes relating to the affairs of an agency or the official affairs of a
Minister unless the disclosure would constitute a breach of confidence owed to
a person or body other than-
(d) a person in the capacity of Minister, member of the staff of a Minister
or officer of an agency; or
(e) an agency or the Territory.
FREEDOM OF INFORMATION ACT 1989 - SECT 46 Documents disclosure of
which would be contempt of Legislative Assembly or a court
46. A document is an exempt document if public disclosure of the document
would, apart from this Act and any immunity of the Crown-
(a) be in contempt of court;
(b) be contrary to an order made or direction given by a Royal Commission or
by a tribunal or other person or body having power to take evidence on oath;
or
(c) infringe the privileges of the Legislative Assembly, of the Commonwealth
Parliament, of the Parliament of a State or of a House of such a Parliament or
of the Legislative Assembly of the Northern Territory or of Norfolk Island.
FREEDOM OF INFORMATION ACT 1989 - SECT 47 Certain documents arising
out of companies and securities legislation
47. A document is an exempt document if it is, or is a copy of or of a part
of, or contains an extract from-
(a) a document for the purposes of the Ministerial Council for Companies and
Securities prepared by, or received by an agency or Minister from, the
Commonwealth, a State or an authority of the Commonwealth or of a State;
(b) a document the disclosure of which would disclose the deliberations or
decisions of the Ministerial Council for Companies and Securities, other than
a document by which a decision of that Council was officially published; or
(c) a document furnished to the National Companies and Securities Commission
by the Territory, the Commonwealth, a State, a Territory authority or by an
authority of the Commonwealth or a State and relating solely to the functions
of the Commission in relation to the law of the Commonwealth or of a State.
FREEDOM OF INFORMATION ACT 1989 - SECT 47A Electoral rolls and
related documents
47A. (1) In this section-
"electoral roll" means-
(a) a roll of electors kept under the Electoral Act 1992; or
(b) a roll extract within the meaning of the Electoral Act 1992.
(2) A reference in this section to an electoral roll in electronic form
shall be read as a reference to a disk or tape from which the information
contained in the roll may be reproduced by mechanical, electronic or other
means.
(3) Subject to subsection (4), each of the following documents is an exempt
document:
(a) an electoral roll, whether in printed or electronic form or on
microfiche or microfilm;
(b) a copy of a document referred to in paragraph (a);
(c) a document setting out particulars of only 1 enrolled person that was
used in keeping an electoral roll;
(d) a copy of a document referred to in paragraph (c);
(e) a document containing only copies referred to in paragraph (d);
(f) a document derived from an electoral roll setting out particulars of
enrolled persons.
(4) A document referred to in subsection (3) is not an exempt document in
relation to a person to the extent that it sets out only the particulars of
the person.
FREEDOM OF INFORMATION ACT 1989 - PART V PART V-AMENDMENT OF
PERSONAL RECORDS
FREEDOM OF INFORMATION ACT 1989 - SECT 48 Persons may make
application for amendment of records
48. Where a person (in this section called the "claimant") who is an
Australian citizen, or whose continued presence in Australia is not subject to
any limitation as to time imposed by law, claims that a document of an agency
or an official document of a Minister to which access has been provided to the
claimant under this Act contains information relating to the person's personal
affairs-
(a) that is incomplete, incorrect, out of date or misleading; and
(b) that has been used, is being used or is available for use by the agency
or Minister for an administrative purpose;
the person may request the agency or Minister to amend the record of that
information kept by the agency or Minister.
FREEDOM OF INFORMATION ACT 1989 - SECT 49 Form of request for
amendment of records
49. (1) A request under section 48-
(a) shall be in writing and be expressed to be made under this Act;
(b) shall specify an address in Australia to which a notice under this Part
may be sent to the claimant; and
(c) shall be sent by post to the agency or Minister, or delivered to an
officer of the agency or a member of the staff of the Minister, at an address
that is an appropriate address of the agency or of the Minister, as the case
may be, for the purposes of section 18.
(2) A request under section 48 shall-
(a) give particulars of the matters in respect of which the claimant
believes the record of information kept by the agency or Minister is
incomplete, incorrect, out of date or misleading; and
(b) specify the amendments that the claimant wishes to be made.
FREEDOM OF INFORMATION ACT 1989 - SECT 50 Procedure upon request
for amendment of records
50. (1) Where an agency to which or Minister to whom a request is made under
section 48 decides to amend the record of information to which the request
relates, the agency or Minister may, in the discretion of the Minister or
agency, make the amendment either by altering the record or by adding an
appropriate notation to the record.
(2) Where an agency or Minister amends a record by adding a notation to the
record, the notation shall-
(a) specify the respects in which the information is incomplete, incorrect,
out of date or misleading; and
(b) if the information is claimed to be out of date-set out such information
as is required to bring the information up to date.
(3) Where a request is made to an agency or Minister under section 48, the
agency or Minister shall take all reasonable steps to ensure that the claimant
is notified of a decision on the request as soon as practicable but in any
case not later than 30 days after the day on which the request is received by
or on behalf of the agency or Minister.
(4) Section 22 applies to a decision in respect of a request made under
section 48.
(5) Section 25 applies to a decision made under this Part refusing to amend
a record in like manner as it applies to a decision made under Part III
refusing to grant access to a document in accordance with a request made in
accordance with subsection 14 (1).
FREEDOM OF INFORMATION ACT 1989 - SECT 51 Review of requests for
amendments
51. (1) A reference in Part VII to a request includes a reference to a
request under section 48 but, for the purposes of the application of that Part
to a request made under that section-
(a) section 59 has effect as if all the words in subsection (1) of that
section after "agency" (second occurring) and before "the applicant" (second
occurring) were omitted;
(b) the reference in paragraph 60 (1) (a) to a decision refusing to grant
access to a document shall be read as a reference to a decision refusing to
amend a record;
(c) paragraph 61 (1) (a) has effect as if "in accordance with section 18"
were omitted;
(d) paragraph 61 (1) (b) has effect as if "referred to in that section" were
omitted and "since the day on which the request was received by or on behalf
of the agency or Minister" were substituted;
(e) the reference in subsection 61 (1) to a decision refusing to grant
access to a document shall be read as a reference to a decision refusing to
amend a record;
(f) the reference in subsection 61 (3) to a decision refusing to grant
access to a document shall be read as a reference to a decision refusing to
amend a record; and
(g) the reference in subsection 61 (5) to a decision to grant, without
deferment, access to a document shall be read as a reference to a decision to
amend a record.
(2) Where-
(a) an agency or Minister refuses to amend a record pursuant to a request
under section 48;
(b) the claimant makes an application to the Tribunal for a review of the
decision; and
(c) the Tribunal affirms the decision; the claimant may, by notice in
writing, require the agency or Minister to add to the record a notation-
(d) specifying the respects in which the information is claimed to be
incomplete, incorrect, out of date or misleading; and
(e) if the information is claimed to be out of date-setting out such
information as is claimed to be required to bring up to date or complete the
information.
(3) Paragraph 49 (1) (c) applies to a notice under subsection (2) in like
manner as it applies to a request under section 48.
(4) Where a notice is given to an agency or Minister under subsection (2)-
(a) the agency or Minister shall ensure that a notation as required by the
notice is added to the record; and
(b) if any information in the part of the record to which the notation
relates is disclosed to a person (including another agency or Minister) by the
agency or Minister, the agency or Minister shall ensure that there is also
given to that person, with the document containing the information, a
statement-
(i) stating that the person to whom the information relates
claims that the information is incomplete, incorrect, out of date or
misleading, as the case may be; and
(ii) giving particulars of the notation;
and may, if the agency or Minister considers it appropriate to do so, include
in the statement the reasons of the agency or Minister for not amending the
part of the record from which the information is taken.
FREEDOM OF INFORMATION ACT 1989 - SECT 52 Notation of records
supplied before commencement of Act
52. Nothing in this Part is intended to prevent or discourage agencies or
Ministers from giving particulars of a notation added to a record in
accordance with paragraph 51 (4) (a) to a person (including any agency or
Minister) to whom information contained in the record to which the notation
relates was given before the commencement of this Act.
FREEDOM OF INFORMATION ACT 1989 - PART VI PART VI-ROLE OF THE
OMBUDSMAN
FREEDOM OF INFORMATION ACT 1989 - SECT 53 Interpretation
53. In this Part-
(a) a reference to the taking of action has the same meaning as it has in
the Ombudsman Act 1989; and
(b) action shall be deemed to have been taken by an agency in the
circumstances in which it would be deemed to be so taken for the purposes of
that Act.
FREEDOM OF INFORMATION ACT 1989 - SECT 54 Complaints to Ombudsman
54. (1) Subject to this Act, a person may complain to the Ombudsman
concerning action taken by an agency in the exercise of powers or the
performance of functions under this Act.
(2) Notwithstanding anything in this Act or in subsection 6 (6) of the
Ombudsman Act 1989, but subject to subsection 6 (5) of that Act, the exercise
of the powers of the Ombudsman under that Act in respect of matters arising
under this Act is not precluded or restricted because of the rights conferred
on persons by this Act to make applications to the Tribunal.
(3) Where a complaint is made to the Ombudsman under the Ombudsman Act 1989
concerning action taken by an agency in the exercise of powers or the
performance of functions under this Act, an application to the Tribunal for a
review of the decision shall not be made before the Ombudsman has informed the
applicant of the result of the complaint in accordance with section 15 of the
Ombudsman Act 1989.
(4) Notwithstanding anything in the Ombudsman Act 1989, a report under that
Act to a complainant in respect of a complaint arising out of a request under
this Act shall not contain information of the kind referred to in subsection
24 (1) of this Act.
FREEDOM OF INFORMATION ACT 1989 - SECT 55 Reports made by the
Ombudsman
55. (1) Where, in the course of an investigation by the Ombudsman in
relation to action taken by an agency in the exercise of powers or the
performance of functions under this Act, the Ombudsman has referred evidence
concerning an officer to a Minister or to a principal officer under subsection
9 (12) of the Ombudsman Act 1989, the Ombudsman shall give a copy of that
evidence to the Commissioner for Public Administration.
(2) A report presented by the Ombudsman, or information provided by the
Ombudsman, under section 8 of the Annual Reports (Government Agencies) Act
1995-
(a) shall include a statement of the operations of the Ombudsman during the
period to which the report or information relates with respect to complaints
made to the Ombudsman, or investigations commenced or completed by the
Ombudsman, concerning action taken by agencies in the exercise of powers or
the performance of functions conferred by this Act; and
(b) may include-
(i) such observations as the Ombudsman considers appropriate
to make concerning the operation of this Act during the period to which the
report or information relates; and
(ii) such recommendations as the Ombudsman considers
appropriate to make concerning ways in which public access to documents of
agencies or to official documents of Ministers might be better secured.
FREEDOM OF INFORMATION ACT 1989 - SECT 56 Documents of agencies
claimed to be exempt under certain provisions
56. Where-
(a) the Ombudsman has commenced an investigation of a decision made under
this Act not to grant a request for access to a document; and
(b) a certificate is given to the Ombudsman under subsection 11 (5) or (6)
of the Ombudsman Act 1989 in relation to that investigation;
the certificate shall not be taken to affect the right of the Ombudsman to
seek from any person the reasons for any decision made under this Act that the
document is an exempt document or to require any person to furnish any
information or to answer any questions concerning that decision.
FREEDOM OF INFORMATION ACT 1989 - SECT 57 Ombudsman may represent
persons in proceedings before the Tribunal
57. (1) The Ombudsman may represent, or arrange for another person to
represent, any person who makes application to the Tribunal, under section 60
of this Act, for review of a decision (not being a decision made by a
Minister) in the proceedings before the Tribunal pursuant to that application
if the Ombudsman is of the opinion, in all the circumstances of the case, that
it is reasonable to do so.
(2) Without limiting the generality of the matters to which the Ombudsman
may have regard in deciding whether to represent an applicant in proceedings
before the Tribunal under section 60, the Ombudsman shall have regard to-
(a) the importance of the principle involved in the matter under review;
(b) the likelihood that the proceedings will establish a precedent in future
proceedings;
(c) the financial means of the applicant;
(d) the applicant's prospects of success; and
(e) the reasonableness of the decision under review.
(3) Nothwithstanding anything in this Part, the reference in subsection (1)
to a decision made by a Minister does not include a reference to a decision
made by a person in the exercise of a power delegated by a Minister.
FREEDOM OF INFORMATION ACT 1989 - PART VII PART VII-REVIEW OF
DECISIONS
FREEDOM OF INFORMATION ACT 1989 - SECT 58 Interpretation
58. For the purposes of this Part, unless the contrary intention appears-
(a) a certificate given under subsection 34 (4) or 35 (5) in respect of a
document as described in a request shall be taken to be a certificate given in
respect of the document so described notwithstanding that the certificate does
not acknowledge the existence or non-existence of the document so described;
and
(b) a claim that a document would, if it exists, be an exempt document under
section 34 or 35 shall be taken to be a claim that the document is an exempt
document under that section notwithstanding that the existence or
non-existence of the document is not acknowledged.
FREEDOM OF INFORMATION ACT 1989 - SECT 59 Internal review
59. (1) Where a decision has been made in relation to a request to an agency
otherwise than by the responsible Minister or principal officer of the agency,
being-
(a) a decision refusing to grant access to a document in accordance with a
request or deferring the provision of access to a document; or
(b) a decision that the applicant is liable to pay a charge (not being an
application fee) in respect of the request for access to a document or in
respect of the provision of access to a document to which the request
relates;
the applicant may, within 28 days after the day on which that decision is
notified to the applicant or within such further period as the principal
officer of the agency allows, by application in writing to the principal
officer of the agency accompanied by any application fee in respect of the
application, request a review of the decision in accordance with this section.
(2) Subject to subsection (3), where an application for a review of a
decision is made to the principal officer in accordance with subsection (1),
the officer shall as soon as possible arrange for himself or herself or a
person (not being the person who made the decision) authorised by the officer
to conduct such reviews to review the decision and make a fresh decision.
(3) Subsection (1) does not apply to-
(a) a decision made on a review under this section; or
(b) a decision in relation to the provision of access to a document upon a
request that is, under subsection 61 (1) or (3), to be taken to have been
given.
(4) Section 25 applies to a decision made under this section.
(5) Where-
(a) a person requests a review of a decision in accordance with this
section;
(b) the request is not accompanied by any application fee; and
(c) the request is accompanied by an application for remission under section
30 of any relevant fee;
the request for review is to be taken to be in accordance with this section
unless and until the agency has taken all reasonable steps to notify the
applicant that the fee is not to be remitted in full.
FREEDOM OF INFORMATION ACT 1989 - SECT 60 Applications to Tribunal
60. (1) Subject to this section, an application may be made to the Tribunal
for review of-
(a) a decision refusing to grant access to a document in accordance with a
request, not being a decision under section 33, or a decision deferring the
provision of access to a document;
(b) a decision refusing to allow a further period for making an application
under subsection 59 (1) for a review of a decision; or
(c) a decision to which section 28 applies.
(2) Subject to subsection (3), where, in relation to a decision referred to
in paragraph (1) (a) or (c), a person is or has been entitled to apply under
section 59 for a review of the decision, that person is not entitled to make
an application under subsection (1) in relation to that decision, but may make
such an application in respect of the decision made on the review.
(3) Subsection (2) does not prevent an application to the Tribunal in
respect of a decision where-
(a) the person concerned has applied under section 59 for a review of the
decision;
(b) a period of 14 days has elapsed since the day on which that application
was received by or on behalf of the agency concerned; and
(c) the person has not been informed of the result of the review;
and such an application to the Tribunal may be treated by the Tribunal as
having been made within the time allowed by subsection (4) if it appears to
the Tribunal that there was no unreasonable delay in making the application.
(4) Notwithstanding section 27 of the Administrative Appeals Tribunal Act
1989, the period within which (subject to any extension granted by the
Tribunal) an application under subsection (1) of this section is to be made in
respect of a decision to which subsection 54 (3) applies is the period
commencing on the day on which the Ombudsman has informed the applicant as
mentioned in that subsection and ending on the 28th day after that day.
FREEDOM OF INFORMATION ACT 1989 - SECT 61 Application to Tribunal
where decision delayed
61. (1) Subject to this section, where-
(a) a request has been made to an agency or Minister in accordance with
section 18;
(b) the period of 30 days referred to in that section has expired or, if
that period has been extended under subsection 18 (3), that period as so
extended has expired; and
(c) notice of a decision on the request has not been received by the
applicant;
the principal officer of the agency or the Minister shall, for the purpose of
enabling an application to be made to the Tribunal under section 60, be taken
to have made a decision refusing to grant access to the document on the last
day of that period.
(2) Where a complaint is made to the Ombudsman under the Ombudsman Act 1989
concerning failure to make and notify to the applicant a decision on a request
(whether the complaint was made before or after the end of the period referred
to in subsection (1)), an application to the Tribunal under section 60 of this
Act by virtue of this section shall not be made before the Ombudsman has
informed the applicant of the result of the complaint in accordance with
section 15 of the Ombudsman Act 1989.
(3) Where such a complaint is made before the end of the period referred to
in subsection (1), the Ombudsman may, after having investigated the complaint,
if he or she is of the opinion that there has been unreasonable delay by an
agency in connection with the request, grant to the applicant a certificate
stating that he or she is of that opinion and, if the Ombudsman does so, the
principal officer of the agency or the Minister shall, for the purpose of
enabling an application to be made to the Tribunal under section 60, be taken
to have made a decision refusing to grant access to the document on the day on
which the certificate is granted.
(4) The Ombudsman shall not grant a certificate under subsection (3) where
the request to which the complaint relates was made to, or has been referred
to, a Minister and is awaiting decision by the Minister.
(5) Where, after an application has been made to the Tribunal by virtue of
this section but before the Tribunal has finally dealt with the application, a
decision, other than a decision to grant, without deferment, access to the
document in accordance with the request is given, the Tribunal may, at the
request of the applicant, treat the proceedings as extending to a review of
that decision in accordance with this Part.
(6) Before dealing further with an application made by virtue of this
section, the Tribunal may, on the application of the agency or Minister
concerned, allow further time to the agency or Minister to deal with the
request.
FREEDOM OF INFORMATION ACT 1989 - SECT 62 Powers of Tribunal
62. (1) Subject to this section, in proceedings under this Part, the
Tribunal has power, in addition to any other power, to review any decision
that has been made by an agency or Minister in respect of the request and to
decide any matter in relation to the request that, under this Act, could have
been, or could be, decided by an agency or Minister, and any decision of the
Tribunal under this section has the same effect as a decision of the agency or
Minister.
(2) Where, in proceedings under this Act, it is established that a document
is an exempt document, the Tribunal does not have power to decide that access
to the document, so far as it contains exempt matter, is to be granted.
(3) Where a certificate under section 34, 35 or 36 is in force in respect of
a document, the powers of the Tribunal do not extend to reviewing the decision
to give the certificate but the Tribunal, constituted in accordance with
section 64, may determine such question in relation to that certificate as is
provided for in whichever of subsections (4), (5) and (6) applies to that
certificate.
(4) Where an application is made to the Tribunal for the review of a
decision refusing to grant access to a document in accordance with a request,
being a document that is claimed to be an exempt document under section 34 or
35 and in respect of which a certificate (other than a certificate of a kind
referred to in subsection (6)) is in force under that section, the Tribunal
shall, if the applicant so requests, determine the question whether reasonable
grounds exist for that claim.
(5) Where an application is made to the Tribunal for the review of a
decision refusing to grant access to a document in accordance with a request,
being a document that is claimed to be an exempt document under section 36 and
in respect of which a certificate is in force under that section, the Tribunal
shall, if it is satisfied that paragraph 36 (1) (a) applies to the document
and if the applicant so requests, determine the question whether reasonable
grounds exist for the claim that the disclosure of the document would be
contrary to the public interest.
(6) Where an application is made to the Tribunal for the review of a
decision refusing to grant access to a document in accordance with a request,
being a document in respect of which a certificate is in force under
subsection 34 (4), the Tribunal shall, if the applicant so requests, determine
the question whether reasonable grounds exist for the claim that information
as to the existence or non-existence of the document as so described would, if
contained in a document of an agency, cause that document to be an exempt
document under section 34.
(7) The powers of the Tribunal under this section extend to matters relating
to charges payable under this Act in relation to a request.
(8) Where-
(a) application is made to the Tribunal for review of a decision refusing to
grant a person access to a document in accordance with a request; and
(b) the agency to which or the Minister to whom the request was made-
(i) has given to the applicant a notice under this Act of the
decision, being a notice that does not include a statement to the effect that
access to the document is being refused because of the operation of subsection
11 (2) or of that subsection as modified by regulations under subsection 11
(3); or
(ii) informs the Tribunal, either before or in the course of
the proceeding for the review of the decision, that the agency or the Minister
does not intend, or does not any longer intend, to refuse access to the
document for the reason referred to in subparagraph (i);
then, for the purposes of the review by the Tribunal of that decision,
subsections 11 (2) and (3) shall be disregarded.
FREEDOM OF INFORMATION ACT 1989 - SECT 63 Proceedings upon exercise
of powers under subsection 62 (4), (5) or (6)
63. (1) Where, in considering a question referred to in subsection 62 (4),
(5) or (6) in relation to a document in respect of which a certificate has
been given, the Tribunal determines that there are not reasonable grounds for
the claim to which the question relates, the appropriate Minister shall, not
later than 28 days after the determination of the Tribunal is communicated to
him or her, make a decision-
(a) to revoke the certificate; or
(b) not to revoke the certificate.
(2) Where a Minister makes a decision under subsection (1) to revoke a
certificate-
(a) if the certificate was given under subsection 34 (2) or 35 (3) or
(5)-the claim that the document to which the certificate relates is an exempt
document shall be taken to have been withdrawn; and
(b) if the certificate was given under subsection 34 (4)-the Minister shall,
as soon as possible after the revocation of the certificate, inform the
applicant of the existence or non-existence of the document to which the
certificate relates.
(3) Where a Minister makes a decision under subsection (1) not to revoke a
certificate, the Minister shall-
(a) give notice in writing of the decision to the applicant as soon as
possible; and
(b) cause a copy of the notice to be laid before the Legislative Assembly
within 5 sitting days of the Legislative Assembly after the notice is so
given.
(4) A notice under subsection (3) shall state the findings of the Minister
giving the notice on any material question of fact, the material on which
those findings were based, and the reasons for the decision.
(5) A Minister is not required to include in a notice under subsection (3)
matter that is of such a nature that its inclusion in a document of an agency
would cause that document to be an exempt document under section 34, 35 or 36.
(6) A Minister is not required to include in a notice under subsection (3)
information as to the existence or non-existence of a document or the
existence or non-existence of a state of fact if that information would, if
included in a document of an agency, cause that last-mentioned document to be
an exempt document under section 34 or 35.
(7) Section 13 of the Administrative Decisions (Judicial Review) Act 1989
does not apply to a decision of a Minister under this section.
(8) Nothing in this section implies that a certificate under section 34, 35
or 36 may not be revoked otherwise than under subsection (1).
(9) In this section, "appropriate Minister" means-
(a) in relation to a document in respect of which a certificate is in force
under section 34 or 36-the Minister who gave, or whose delegate gave, that
certificate; or
(b) in relation to a document in respect of which a certificate is in force
under section 35-the Chief Minister.
FREEDOM OF INFORMATION ACT 1989 - SECT 64 Constitution of Tribunal
for purposes of proceedings under subsection 62 (4), (5) or (6)
64. Where a request is made to the Tribunal in accordance with subsection 62
(4), (5) or (6), the Tribunal shall be constituted for the purposes of the
proceeding by-
(a) the President; or
(b) the President and such other members as the President determines.
FREEDOM OF INFORMATION ACT 1989 - SECT 65 Hearing of certain
proceedings before the Tribunal
65. (1) This section has effect notwithstanding anything in the
Administrative Appeals Tribunal Act 1989.
(2) At the hearing of a proceeding referred to in section 64, the Tribunal-
(a) shall hold in private the hearing of any part of the proceeding during
which evidence or information is given, or a document is produced, to the
Tribunal by-
(i) an agency or an officer of an agency;
(ii) a Minister or a member of the staff of a Minister; or
(iii) a person holding or performing the duties of an office
identified in regulations made for the purposes of section 6, or a member,
officer or member of the staff of a body so identified;
or during which a submission is made to the Tribunal by or on behalf of an
agency or Minister, being a submission in relation to a claim-
(iv) in the case of a document in respect of which a
certificate under subsection 34 (2) or section 35 is in force-that the
document is an exempt document;
(v) in the case of a document in respect of which a
certificate under section 36 is in force-that the disclosure of the document
would be contrary to the public interest; or
(vi) in a case where a certificate under subsection 34 (4) is
in force-that information as to the existence or non-existence of a document
as described in a request would, if contained in a document of an agency,
cause that document to be an exempt document under section 34; and
(b) subject to subsection (4), shall hold the hearing of any other part of
the proceeding in public.
(3) Where the hearing of any part of a proceeding is held in private in
accordance with subsection (2), the Tribunal-
(a) may, by order, give directions as to the persons who may be present at
that hearing; and
(b) shall give directions prohibiting the publication of-
(i) any evidence or information given to the Tribunal;
(ii) the contents of any documents lodged with, or received in
evidence by, the Tribunal; and
(iii) any submission made to the Tribunal;
at that hearing.
(4) Where, in relation to a proceeding referred to in section 64, the
Tribunal is satisfied that it is desirable to do so because of the
confidential nature of any evidence, information or matter or for any other
reason, the Tribunal may, by order-
(a) direct that the hearing of a part of the proceeding that, but for this
subsection, would be held in public shall take place in private and give
directions as to the persons who may be present at that hearing;
(b) give directions prohibiting or restricting the publication of-
(i) the contents of any document lodged with the Tribunal in
relation to the proceeding; or
(ii) any evidence or information given to the Tribunal, the
contents of any document received in evidence by the Tribunal, or any
submission made to the Tribunal, in relation to the proceeding otherwise than
at a hearing held in private in accordance with subsection (2); or
(c) give directions prohibiting or restricting the disclosure to some or all
of the parties to the proceeding of evidence given before the Tribunal, or the
contents of a document lodged with, or received in evidence by, the Tribunal
in relation to the proceeding.
(5) A direction given by the Tribunal under paragraph (3) (b) or (4) (b)
does not prevent a person referred to in subparagraph (2) (a) (i), (ii) or
(iii) from disclosing, in the course of the performance of his or her duties,
any matter to any other person.
FREEDOM OF INFORMATION ACT 1989 - SECT 66 Modification of section
42 of the Administrative Appeals Tribunal Act
66. In its application to a proceeding referred to in section 64 of this
Act, section 42 of the Administrative Appeals Tribunal Act 1989 applies as if
subsection (1) of that section were omitted and the following subsection
substituted:
"(1) A question of law (including the question whether a particular question
is one of law) arising in a proceeding before the Tribunal constituted in
accordance with section 64 of the Freedom of Information Act 1989 shall be
decided according to the opinion of the President.".
FREEDOM OF INFORMATION ACT 1989 - SECT 67 Production to the
Tribunal of documents in relation to which a certificate has been
issued
67. (1) In any proceedings before the Tribunal under this Act in relation to
a document in respect of which a certificate under section 34, 35 or 36 is in
force, the Tribunal is entitled to require the production of the document in
accordance with this section and not otherwise.
(2) Where, in considering a question referred to in subsection 62 (4), (5)
or (6) in relation to a document, the Tribunal is not satisfied, by evidence
on affidavit or otherwise, that reasonable grounds exist for the claim to
which the question relates, the Tribunal may require the document to be
produced for inspection by the Tribunal as constituted for the purposes of the
proceeding.
(3) After an inspection of a document under this section, the Tribunal shall
return the document to the person by whom it was produced without permitting
any person who is not a member of the Tribunal as constituted for the purposes
of the proceeding, or a member of the staff of the Tribunal in the course of
the performance of his or her duties as a member of that staff, to have access
to the document or disclosing the contents of the document to any such person.
FREEDOM OF INFORMATION ACT 1989 - SECT 68 Review of certain
decisions in respect of documents relating to the Commonwealth or a
State
68. (1) Where notice of a decision that a document is not an exempt document
under section 34 or under any other provision of this Act has been given in
accordance with subsection 26 (2) to the Commonwealth or a State, the
Commonwealth or the State may apply to the Tribunal for a review of the
decision that the document is not an exempt document under section 34.
(2) Where an application is made under subsection (1)-
(a) the provisions of this Part (other than sections 60 and 71) apply in
like manner as they apply to an application for review of a decision refusing
to grant access to a document; and
(b) the agency or Minister concerned shall, as soon as possible, inform the
person who made the request of the application.
(3) Where-
(a) after consultation between the Territory and the Commonwealth or the
Territory and a State in accordance with arrangements of the kind referred to
in section 26, a decision is made not to grant access to the document to which
the consultation relates; and
(b) an application is made to the Tribunal for a review of the decision;
the agency or Minister concerned shall, as soon as possible, inform the
Commonwealth or the State in accordance with those arrangements of the
application.
FREEDOM OF INFORMATION ACT 1989 - SECT 69 Review of certain
decisions in respect of documents relating to business affairs etc.
69. (1) Where notice of a decision that a document, so far as it contains
certain information, is not an exempt document under section 43 has been
given, in accordance with subsection 27 (2), to a person who made submissions
in accordance with that section, that person may apply to the Tribunal for a
review of that decision.
(2) Where an application is made in accordance with subsection (1)-
(a) the provisions of this Part (other than sections 60 and 71) apply in
like manner as they apply to an application for review of a decision refusing
to grant access to a document; and
(b) the agency or Minister concerned shall, as soon as possible, inform the
person who made the request of the application.
(3) Where-
(a) upon a request referred to in subsection 27 (1), a decision is made,
after the making of submissions by a person in accordance with that
subsection, not to grant access to the document to which the request relates
so far as it contains the information referred to in paragraph 27 (1) (a);
and
(b) an application is made to the Tribunal for a review of the decision;
the agency or Minister concerned shall, as soon as possible, inform the person
who made the submissions of the application.
FREEDOM OF INFORMATION ACT 1989 - SECT 70 Parties
70. For the purposes of this Part and of the application of the
Administrative Appeals Tribunal Act 1989 in respect of proceedings under this
Part-
(a) a decision given by a person on behalf of an agency shall be taken to
have been given by the agency;
(b) in proceedings by virtue of section 61, the agency or Minister to which
or to whom the request was made shall be a party to the proceedings; and
(c) in proceedings for the determination of a question referred to in
subsection 62 (4), (5) or (6) in relation to a document, the Minister who is
the appropriate Minister for the purposes of section 63 in respect of that
document shall, upon application to the Tribunal, be entitled to be a party to
the proceedings.
FREEDOM OF INFORMATION ACT 1989 - SECT 71 Onus
71. In proceedings under this Part, the agency or Minister to which or to
whom the request was made has the onus of establishing that a decision given
in respect of the request was justified or that the Tribunal should give a
decision adverse to the applicant.
FREEDOM OF INFORMATION ACT 1989 - SECT 72 Application of section 26
of Administrative Appeals Tribunal Act etc.
72. (1) Where, in relation to a decision in respect of a request, the
applicant has been given a notice in writing under section 25, section 26 of
the Administrative Appeals Tribunal Act 1989 does not apply to that decision.
(2) If the Tribunal, upon application for a declaration under this
subsection made to it by a person to whom a notice has been given under
subsection 25 (1), considers that the notice does not contain-
(a) adequate particulars of findings on material questions of fact;
(b) an adequate reference to the evidence or other material on which those
findings were based; or
(c) adequate particulars of the reasons for the decision;
the Tribunal may make a declaration accordingly, and, where the Tribunal makes
such a declaration, the person responsible for giving the notice shall, as
soon as practicable but in any case within 28 days after the Tribunal makes
the declaration, give to the applicant an additional notice containing further
and better particulars in relation to matters specified in the declaration
with respect to those findings, that evidence or other material or those
reasons.
FREEDOM OF INFORMATION ACT 1989 - SECT 73 Tribunal to ensure
non-disclosure of certain matters
73. (1) In proceedings under this Part, the Tribunal shall make such order
under subsection 34 (2) of the Administrative Appeals Tribunal Act 1989 as it
thinks necessary having regard to the nature of the proceedings and, in
particular, to the necessity of avoiding the disclosure to the applicant of-
(a) exempt matter contained in a document to which the proceedings relate;
or
(b) information of the kind referred to in subsection 24 (1).
(2) Notwithstanding the Administrative Appeals Tribunal Act 1989-
(a) the Tribunal shall not, in its decision, or reasons for a decision, in a
matter arising under this Act, include any matter or information of a kind
referred to in subsection (1); and
(b) the Tribunal may receive evidence, or hear argument, in the absence of
the applicant or his or her representative where it is necessary to do so in
order to prevent the disclosure to the applicant of matter or information of a
kind referred to in subsection (1).
FREEDOM OF INFORMATION ACT 1989 - SECT 74 Production of exempt
documents
74. (1) Where there are proceedings before the Tribunal under this Act in
relation to a document that is claimed to be an exempt document, section 37 of
the Administrative Appeals Tribunal Act 1989 does not apply to the document.
(2) If the Tribunal is not satisfied, by evidence on affidavit or otherwise,
that the document is an exempt document it may require the document to be
produced for inspection by members of the Tribunal.
(3) If, upon the inspection, the Tribunal is satisfied that the document is
an exempt document, the Tribunal shall return the document to the person by
whom it was produced without permitting any person other than a member of the
Tribunal as constituted for the purposes of the proceeding, or a member of the
staff of the Tribunal in the course of the performance of his or her duties as
such a member, to have access to the document or disclosing the contents of
the document to any such person.
(4) The Tribunal-
(a) may require the production, for inspection by members of the Tribunal as
constituted for the purposes of the proceeding, of an exempt document for the
purpose of determining whether it is practicable for an agency or a Minister
to grant access to