Your 'A to E' guide on disclosure log obligations under s 11C of the FOI Act

What is it and who must comply?

Every Australian government agency and minister that is subject to the Freedom of Information Act 1982 (Cth) (FOI Act) must publish information that has been released in response to every FOI request, unless an exception applies. This publication is called a ‘disclosure log’.

Setting it up

As per s 11C(3) of the FOI Act, the disclosure log must publish the information to members of the public generally on a website by:

1. making the information available for downloading from the website, or
2. publishing on the website a link to another website, from which the information can be downloaded, or
3. publishing on the website other details of how the information may be obtained.

The agency may impose a charge on a person for accessing the information only if:

1. the person does not directly access the information by downloading it from the website (or another website), and
2. the charge is to reimburse the agency for a specific reproduction cost, or other specific incidental costs, incurred in giving the person access to that particular information.

As noted by the Office of the Australian Information Commissioner’s (OAIC) guidance on disclosure logs, the FOI Act does not prescribe the form of a disclosure log. However, the OAIC recommends that disclosure logs should include details including the following:

• searchable table of released information
• the documents themselves (or links to them), and
• an introductory statement covering the log’s purpose, what is excluded, how to access information that is not online or any charges (Guidelines [14.40], [14.53]-[15.60]; s 11C(3)).

While OAIC guidance provides that disclosure logs should ideally provide access to the relevant documents released under the FOI Act (this being consistent with the FOI Act), if the disclosure log contains only a description of the documents released, that description should be sufficient to allow a person to make an informed decision about whether to request a copy.

What to publish and when

All decisions eligible for publication should be published within 10 working days of granting the applicant access (s 11C(6)).

Each entry must have:

• reference number
• access date
• publication date
• a request summary, and
• either the document for download or a sufficiently detailed description.

Unless it is not technically practicable, the relevant decisions should be available via a direct download system (s 11C(3)(a)). Where this is not possible, there must be instructions on how to obtain the documents listed on the disclosure log (OAIC Guidelines paragraph [14.48]).

What to exclude

As per s 11C(1) of the FOI Act, the following material must not be published:

• Personal information where publication would be unreasonable (s 11C(1)(a)).
• Business or commercial information where publication would be unreasonable (s 11C(1)(b)).
• Exempt documents covered by the FOI (Disclosure Log – Exempt Documents) Determination 2018 (s 11C(1)(c)).
• Information where the extent of redaction required makes publication not reasonably practicable (s 11C(1)(d)).

Charges and access

The log must be free to access (s 11C(4)), unless:

• the information is not directly accessed through downloading from the website, and
• the charge is for reimbursement to the agency for a specific reproduction cost or incident incurred in providing that information.

If any charge is unavoidable, these details should be published on your website (s 11C(5)).

Further, an agency should never treat a request for documents described on the log as a new FOI request under s 15 and never apply s 29 charges (OAIC Guidelines paragraph [14.71]).

Conclusion – staying compliant!

• Keep an internal register tracking every FOI request and its disclosure log status (Guidelines [14.77]).
• Report annual statistics to the Information Commissioner (s 93 FOI Act).
• Permanently retain log entries even after documents are removed (Guidelines [14.85]).
• Seek National Archives approval before destroying removed documents (s 24 Archives Act 1983).

Should you wish for further information or advice relating to your disclosure log obligations, please reach out to Chantal Tipene and our team of leading FOI specialists would be happy to assist.