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To finish off our FOI blog for 2025, our Information Law team has truly got into the holiday spirit and have put together their own 12 days of FOI – a list that Santa himself would no doubt be proud of.

The team has compiled 12 days’ worth of FOI provisions to fill your stocking with, either their personal highlights or less commonly known sections, which they wanted to shine a light on.

In the spirit of the season, please feel free to read one provision a day to savour it like your favourite advent calendar chocolate treat, or else feel free to binge the provisions and stuff yourself silly with the joy of FOI!

Our team wishes all FOI practitioners a very Merry Christmas! Despite our love for transparency and efficiency, we hope the holidays bring some nice surprises under your tree, and a quieter time to the end of your year.

1. Section 5 – Acts to apply to courts in respect of administrative matters

The FOI Act has restricted application to documents held by Courts and Court Registries. Specifically, the FOI Act does not apply to a request for access to a document of a court or registry ‘unless the document relates to matters of an administrative nature’. The phrase ‘matters of an administrative nature’ is not defined in the FOI Act but the FOI Guidelines explains that the phrase refers to documents that concern ‘the management and administration of office resources’.

Remember though, if you work at a Commonwealth Agency who holds copies of Court documents and don’t work for a Court or Court Registry yourself you will not be able to rely on s 5. Instead, you may wish to consider the application of other exemption provisions (as a start, look at ss 42, 47F, 47E and 47G).  

2. Section 6A– Official Secretary to the Governor‑General

Did you know that the FOI Act doesn’t apply to the Official Secretary to the Governor‑General?

Section 6A excludes from the operation of the FOI Act any document in the possession of a person employed under s 13 of the Governor‑General Act 1974 that is in his or her possession by reason of his or her employment.

The only documents that are within scope of the FOI Act as they relate to the Official Secretary to the Governor‑General are documents of an administrative nature.

3. Section 6C – Requirement for Commonwealth contracts

Documents held by Commonwealth contractors can also be requested under the FOI Act, where the document relates to the performance of the Commonwealth contract.

As per s 6 (1) of the FOI act, a ‘Commonwealth contract’ is a contract:

  1. the Commonwealth or an agency is, or was, a party to the contract;
  2. under the contract, services are, or were, to be provided:
    1. by another party, and
    2. for or on behalf of an agency, and
    3. to a person who is not the Commonwealth or an agency
  3. the services are in connection with the performance of the functions, or the exercise of the powers, of an agency.

Where an agency engages a service provider under a Commonwealth contract, s 6C of the FOI Act requires the agency to take contractual measures to ensure that when it receives an FOI request relating to a Commonwealth contract, it can obtain documents that have been created by or are in the possession of the contractor (or a subcontractor).

4. Section 21(d) - Deferment of access

Under s 21, an agency or minister who receives a request under the FOI Act may defer providing access to a document or documents in scope of the request in certain circumstances.

There are five situations where deferment may be appropriate, these are as follows:

  1. if the publication of the document concerned is required by law--until the expiration of the period within which the document is required to be published, or
  2. if the document concerned has been prepared for presentation to Parliament 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 expiration of a reasonable period after its preparation for it to be so presented or made available, or
  3. 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 expiration of any period of time beyond which the release of the document would not be contrary to the public interest, or
  4. if a Minister considers that the document concerned is of such general public interest that the Parliament should be informed of the contents of the document before the document is otherwise made public--until the expiration of five sitting days of either House of the Parliament.

Practically, when looking to defer access, the agency should still issue the statement of reasons on the due date and, if practicable to do so advise when the documents are expected to be release (see section 21(2)).

5. Section 47A – Electoral rolls and related documents

Section 47A of the FOI Act exempts electoral rolls, copies or prints of electoral rolls, documents that set out particulars of electors and are derived from an electrical roll, and other specified related documents from disclosure.

The exemption extends to electoral roll-related documents of the Commonwealth as well as states and territories.

Individuals can, however, access their own electoral records.

6. Section 47H – Public interest conditional exemptions – research

Section 75H of the FOI Act states that a document is conditionally exempt if it contains information relating to research that is being, or is to be, undertaken by an officer of an agency specified in Schedule 4 and disclosure of the information before the completion of the research would be likely unreasonably to expose the agency or officer to disadvantage.

The agencies specified in Schedule 4 of the FOI Act are the Commonwealth Scientific and Industrial Research Organisation and the Australian National University.

There are currently no Tribunal or Court decisions on this provision. 

7. 47J – Public interest conditional exemptions—the economy

This exemption allows agencies to conditionally exempt material if disclosure would, or could be reasonably expected to, have a substantial adverse effect on Australia’s economy by influencing a decision or action of a person or giving a person undue benefit in relation to their business.

Rovere v Secretary, Department of Education and Training [2015] AATA 462, is the only published AAT decision that has considered the conditional exemption about the economy. This decision considered the exemption at a very high-level, ultimately declining to deal with it in depth, on the basis that material had already been found to be exempt under an alternative provision.  

An IC decision that has dealt with this provision is Washington and Australian Prudential Regulation Authority [2011] AICmr 11. In this decision, the Commissioner was satisfied that the material at issue was conditionally exempt under s 47J of the FOI Act, due to the disclosure of the relevant material being reasonably expected to have a substantial adverse effect on the banking, insurance and other financial institution sectors by:

  • influencing the decisions and actions of two groups of persons or entities (see s 47J(1)(a)), and
  • giving persons in those groups an undue benefit in relation to business carried on in those sectors by providing premature knowledge of proposed or possible action by APRA (see s 47J(1)(b))

8. 53A(e) – Decision to impose charges are reviewable

Agencies should keep in mind that reviewable decisions under the FOI Act are not just limited to a decision to provide access or not to provide access.

If an agency decides under s 29 of the FOI to impose a charge on an access applicant before granting access to the documents, that decision to impose charges can be subject to internal review, Information Commissioner (IC) Review and Administrative Review Tribunal (ART) review.

9. Section 55T – Information gathering powers—production of exempt documents generally

Section 55T of the FOI Act applies to an IC review of a decision in relation to a document of:

  1. the principal officer of an agency or a Minister claim that the document is an exempt document; and
  2. s 55U does not apply to the document.

Section 55U deals with the production of documents that are claimed to be exempt documents under ss 33, 34, or 45A.

Pursuant to sub-section 55T(2), the IC may, for the purposes of deciding whether the document is an exempt document, require the document to be produced. Whilst a formal order under s 55T isn’t always issued by the OAIC, Agencies can request this if they have additional concerns or sensitivities relating to the production of a specific document to the IC.  

10. Section 56A – Appeals – Federal Court of Australia may make findings of fact

Where an Applicant appeals a decision of the IC on question of law to the Federal Court of Australia (FCA), the FCA may make findings of fact having regard to the evidence already available, in addition to the further evidence received.

However, the finding of fact must not be inconsistent with any findings of fact made by the IC (other than those made as a result of an error of law).

In accordance with s 56(1)(b), the Court may make findings of fact if it appears convenient to do so having, regard to all of the following:

  1. the extent (if any) to which it is necessary for facts to be found;
  2. the means by which those facts might be established;
  3. the expeditious and efficient resolution of the whole of the matter to which the IC review relates;
  4. the relative expense to the parties of the Court, rather than the Information Commissioner, making the findings of fact
  5. the relative delay to the parties of the Court, rather than the Information Commissioner, making the findings of fact;
  6. whether any of the parties considers that it is appropriate for the Court, rather than the Information Commissioner, to make the findings of fact;
  7. such other matters (if any) as the Court considers relevant.

11. Section 89F – Complaints to Ombudsman – powers not affected

Under s 89F of the FOI Act, the Commonwealth Ombudsman retains its authority under the Ombudsman Act 1976 to investigate a complaint about action taken by an agency under the FOI Act.

Although, the Ombudsman must consult the IC when deciding to investigate a complaint that is the subject of a completed investigation by the IC, or is or could be the subject of a complaint to the IC (that could be more effectively dealt with by the IC). This is to avoid duplication of investigations.

Under s 74 of the FOI Act, the IC may also transfer a complaint to the Ombudsman where:

  • the complaint is about how the IC dealt with an IC review
  • when the FOI complaint is part of a wider grievance about an agency’s actions.

12. Sections 90, 91 and 92 – Protection against civil and criminal liability  (three provisions in one – what a Christmas gift to end on!)

Section 90

Section 90(1) of the FOI Act provides that no action for defamation, breach of confidence or infringement of copyright lies against the Commonwealth, a Minister, an agency or an officer of an agency because the Minister, or an officer of the agency:

  1. publishes a document in good faith, in the belief that the publication is required or permitted under Part II or section 11C; or
  2. gives access to a document in good faith, in the belief that the access is required or permitted to be given in response to a request; or
  3. publishes, or gives access to, a document in good faith, in the belief that the publication or access is required or permitted otherwise than under the FOI Act.

Section 91

Section 91 of the FOI Act sets out particular situations in which a government agency will be protected against civil liability. For example, subsection 90(1A) states that section 90 applies in relation to the giving of access to a document even if, in giving access, there has been a failure to comply with ss 26A, 27 or 27A.

Section 92

Secrecy provisions under Commonwealth legislation restrict the disclosure and handling of certain information (‘protected information’). Where protected information is not handled in accordance with the relevant legislation, agency officers and ministers may be liable for a criminal penalty.

However, under s 92 of the FOI Act, FOI officers and ministers will not commit a criminal offence when responding to an FOI request where they, in good faith:

  1. publish a document where they genuinely believe that publication on a disclosure log or under the Information Publication Scheme is required or permitted
  2. provide access to a document where they genuinely believe that access is required or permitted to be give
  3. publish or give access to a document where they genuinely believe that publication or access is required or permitted otherwise than under the FOI Act.

FOI officers will also not commit a criminal offence where they provide access to a document to a third party for the purposes of third-party consultation. 

 

So there you have it. We hope that you enjoyed reading that just as much as we enjoyed writing it!

Our Sparke Helmore Lawyers Information Law team wishes all FOI practitioners a very happy and restful end of year. Whether we’ve assisted your agency through secondments, advice work, FOI processing or litigation it’s been a privilege to work with you on these very interesting and engaging matters.

Don’t forget to check out our recent article 'wRAPping' up the FOI year and staying ahead of the clock’ for some tips and tricks to ensure that your FOI team is able to take that well deserved Christmas break!

 

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