Country

Australia

Australia

Name of law : Freedom of Information Act
First adopted : 1982

Section Max ScoreScore
Right of Access 6 2
Scope 30 10
Requesting procedures 30 21
Exceptions 30 15
Appeals 30 23
Sanctions 8 2
Promotional measures 16 10
TOTAL 150 83

Introduction:
Australia's access law is problematic on several fronts. First and foremost is its limited scope, and the fact that the law excludes the Governor General and the legislature, and only applies to the judiciary in a limited way. Several other agencies are excluded, including intelligence agencies and defence agencies, the Auditor General, the Government Solicitor, the National Workplace Relations Consultative Council, and the Aboriginal Land Councils and Land Trusts. The Act also lists several exceptions which are not harm tested, provides a very weak public interest override, allows other legislation to provide seperate exemptions. Signs point to the fact that implementation of this law is relatively good, so it is entirely possible that this score undervalues the true openness of Australia's government. Nonetheless, the legal framework is definitely problematic, and should be updated to bring Australia into line with international standards.
Right of Access

Indicator

Description

Scoring instructions
MAX score
Findings

Points

Article

Comments
1 The legal framework (including jurisprudence) recognises a fundamental right of access to information.Score 0 for no constitutional right to information, 1 point for a limited constitutional right, 2 points for full constitutional recognition of a public right of access to information.2 NO Not in the constitution Link to the Constitution of Australia (English version): http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution
2 The legal framework creates a specific presumption in favour of access to all information held by public authorities, subject only to limited exceptions.No=0, Partially=1, Yes=22 NO No mentioned
3 3.1 The legal framework contains a specific statement of principles calling for a broad interpretation of the RTI law
3.2 The legal framework emphasises the benefits of the right to information?
3.1(Y/N - max 1 point)
3.2 (Y/N - max 1 point)
2 YES 1 - Art3(4) 1 - Art 3(3)




Scope

Indicator

Description

Scoring instructions
MAX score
Findings

Points

Article

Comments
4 Everyone (including non-citizens and legal entities) has the right to file requests for information.Score 0 point if only residents/citizens; 1 point for all natural persons; 1 point for legal persons. 2 YES 11 "Right of access (1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act(...)" Art 11 - every person - no mention of legal persons, but the interpretation guide expands the right to legal persons.
5 The right of access applies to all material held by or on behalf of public authorities which is recorded in any format, regardless of who produced it.Score 1-3 points if limited definition of information information such as not "internal documents" or databases excluded, 4 points for all information with no exceptions.4 Partially 4 Interpretation (1) In this Act, unless the contrary intention appears: ACT enactment means an enactment as defined by section 3 of the Australian Capital Territory (Self-Government) Act 1988 . agency means a Department, a prescribed authority or an eligible case manager. applicant means a person who has made a request. Cabinet notebook means a notebook or other like record that contains notes of discussions or deliberations taking place in a meeting of the Cabinet or of a committee of the Cabinet, being notes made in the course of those discussions or deliberations by, or under the authority of, the Secretary to the Cabinet. Commission of inquiry means: (a) the Commission of inquiry within the meaning o f the Quarantine Act 1908 ; or (b) a Commission of inquiry within the meaning of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 . Defence Imagery and Geospatial Organisation means that part of the Department of Defence known as the Defence Imagery and Geospatial Organisation. Defence Intelligence Organisation means that part of the Department of Defence known as the Defence Intelligence Organisation. Defence Signals Directorate means that part of the Department of Defence known as the Defence Signals Directorate. Department means a Department of the Australian Public Servic e that corresponds to a Department of State of the Co mmonwealth but does not include the branch of the Australian P ublic Service comprising the transitional staff as defined by sec tion 3 of the A.C.T. Self-Government (Consequential Provisions) A ct 1988 . document includes: (a) any of, or any part of any of, the following t hings: (i) any paper or other material on which there is writing; (ii) a map, plan, drawing or photograph; (iii) any paper or other material on which there a re marks, figures, symbols or perforations having a meaning f or persons qualified to interpret them; (iv) any article or material from which sounds, im ages or writings are capable of being reproduced with or without the aid of any other article or device; (v) any article on which information has been stor ed or recorded, either mechanically or electronically; (vi) any other record of information; or (b) any copy, reproduction or duplicate of such a thing; or (c) any part of such a copy, reproduction or dupli cate; but does not include: (d) library material maintained for reference purp oses; or (e) Cabinet notebooks. document of an agency or document of the agency means a document in the possession of an agency, or in the possession of the agency concerned, as the case requires, whether created in the agency or received in the agency. edited copy , in relation to a document, means a copy of the document from which deletions have been made under section 22. eligible case manager means an entity (within the meaning of the Employment Services Act 1994 ): (a) that is, or has at any time been, a contracted case manager within the meaning of that Act; and (b) that is not: (i) a Department; or (ii) a prescribed authority. enactment means, subject to section 4A: (a) an Act; (b) an Ordinance of the Australian Capital Territo ry; or (c) an instrument (including rules, regulations or by-laws) made under an Act or under such an Ordinance and include s an enactment as amended by another enactment. exempt content-service document means: (a) a document containing content, or a record of content (within the meaning of Schedule 7 to the Broadcasting Services Act 1992 ), that: (i) has been delivered by, or accessed using, a co ntent service (within the meaning of that Schedule); and (ii) was offensive content-service content when it was delivered by, or accessed using, that content servi ce; or (b) a document that sets out how to access, or tha t is likely to facilitate access to, offensive content-service con tent (for example, by setting out the name of a website, an I P address, a URL or a password). exempt document means: (a) a document which, by virtue of a provision of Part IV, is an exempt document; (b) a document in respect of which, by virtue of s ection 7, an agency, person or body is exempt from the operation of this Act; or (c) an official document of a Minister that contai ns some matter that does not relate to the affairs of an agency or of a Department of State. exempt internet-content document means: (a) a document containing information (within the meaning of Schedule 5 to the Broadcasting Services Act 1992 ) that: (i) has been copied from the internet; and (ii) was offensive internet content when it was ac cessible on the internet; or (b) a document that sets out how to access, or tha t is likely to facilitate access to, offensive internet content (f or example: by setting out the name of a website, an IP address , a URL, a password, or the name of a newsgroup). exempt matter means matter the inclusion of which in a document causes the document to be an exempt document. offensive content-service content means content (within the meaning of Schedule 7 to the Broadcasting Services Act 1992 ) that is: (a) delivered by, or accessed using, a content ser vice (within the meaning of that Schedule); and (b) either: (i) prohibited content (within the meaning of that Schedule); or (ii) potential prohibited content (within the mean ing of that Schedule). offensive internet content means internet content (within the meaning of Schedule 5 to the Broadcasting Services Act 1992 ) that is: (a) prohibited content (within the meaning of Schedule 5 to that Act as in force before the commencement of Schedule 7 to that Act); or (b) potential prohibited content (within the meaning of Schedule 5 to that Act as in force before the commencement of Schedule 7 to that Act). officer , in relation to an agency, includes a member of the agency or a member of the staff of the agency. official document of a Minister or official document of the Minister means a document that is in the possession of a Minister, or that is in the possession of the Minister concerned, as the case requires, in his or her capacity as a Minister, being a document that relates to the affairs of an agency or of a Department of State and, for the purposes of this definition, a Minister shall be deemed to be in possession of a document that has passed from hi s or her possession if he or she is entitled to access to th e document and the document is not a document of an agency. Ombudsman means the Commonwealth Ombudsman. Ordinance , in relation to the Australian Capital Territory, includes a law of a State that applies, or the provisions of a law of a State that apply, in the Territory by virtue of an enactment (other than a law that is, or provisions that are an ACT enactment). personal information means information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about a n individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. 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 or an Order-in-Council, other than: (i) an incorporated company or association; or (ii) a body that, under subsection (2), is not to be taken to be a prescribed authority for the purposes of this Act ; or (iii) the Australian Capital Territory House of Assembly; or (iv) the Legislative Assembly of the Northern Territory or the Executive Council of the Northern Territory; or (v) the Legislative Assembly of the Territory of Norfolk Island; or (vi) a Royal Commission; or (vii) a Commission of inquiry; (b) any other body, whether incorporated or unincorporated, declared by the regulations to be a prescribed authority for the purposes of this Act, being: (i) a body established by the Governor-General or by a Minister; or (ii) an incorporated company or association over which the Commonwealth 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 or an Order-in-Council; or (d) the person holding, or performing the duties o f, an appointment declared by the regulations to be an appointment the holder of which is a prescribed authority for t he purposes of this Act, being an appointment made by the Governor-General, or by a Minister, otherwise than under an enactment or an Order-in-Counc principal officer means: (a) in relation to a Department—the person holding , or performing the duties of, the office of Secretary o f the Department; or (b) in relation to a prescribed authority: (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, 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 he or she is present; or (c) in relation to an eligible case manager: (i) if the eligible case manager is an individual— the individual; or (ii) in any other case—the individual who has primary responsibility for the management of the eligible case manager. request means an application made under subsection 15(1). responsible Minister means: (a) in relation to a Department—the Minister administering the relevant Department of State; or (b) in relation to a prescribed authority referred to in paragraph (a) of the definition of prescribed authority —the Minister administering the part of the enactment by which, or in accordance with the provisions of which, the prescribed authority is established; or (c) in relation to a prescribed authority referred to in paragraph (c) of that definition—the Minister administering the part of the enactment by which the office is established; or (d) in relation to any other prescribed authority— the Minister declared by the regulations to be the responsible Minister in respect of that authority; or (e) in relation to an eligible case manager—the Minister administering the Employment Services Act 1994 ; or another Minister acting for and on behalf of that Minister. State includes the Australian Capital Territory and the Northern Territory. Tribunal means the Administrative Appeals Tribunal. (2) An unincorporated body, being a board, council , committee, sub-committee or other body established by, or in accordance with the provisions of, 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 deemed to be comprised within that prescribed authority. (3) A person shall not be taken to be a prescribed authority: (a) by virtue of his or her holding: (i) an office of member of the Legislative Assembly for the Australian Capital Territory; (ii) an office of member of the Legislative Assembly of the Northern Territory or of Administrator or of Minister of the Northern Territory; or (iii) an office of member of the Legislative Assembly of the Territory of Norfolk Island or of Administrator or Deputy Administrator of that Territory or an executive office created pursuant to section 12 of the Norfolk Island Act 1979 ; or (b) by virtue of his or her holding, or performing the duties of: (i) a prescribed office; (ii) an office the duties of which he or she performs as duties of his or her employment as an officer of a Department or as an officer of or under a prescribe d authority; (iii) an office of member of a body; or (iv) an office established by an enactment for the purposes of a prescribed authority. (4) For the purposes of this Act, the Department of Defence shall be deemed to include: (a) the Defence Force; (b) the Australian Army Cadets; (c) the Australian Navy Cadets; and (d) the Australian Air Force Cadets. (5) Without limiting the generality of the express ion security of the Commonwealth , that expression shall be taken to extend to: (a) matters relating to the detection, prevention or suppression of activities, whether within Australia or outside Australia, subversive of, or hostile to, the interests of the Commonwealth or of any country allied or associated with the Commonwealth; and (b) the security of any communications system or cryptographic system of the Commonwealth or of another country us ed for: (i) the defence of the Commonwealth or of any country allied or associated with the Commonwealth; or (ii) the conduct of the international relations of the Commonwealth. (6) Where an agency is abolished, then, for the purposes of this Act: (a) if the functions of the agency are acquired by another agency—any request made to the first-mentioned agency shall be deemed to have been made to, and any decision made by the first-mentioned agency in respect of a request made to it shall be deemed to have been made by, the other agency; and (b) if the functions of the agency are acquired by more than one other agency—any request made to the first-mentioned agency shall be deemed to have been made to, and an y decision made by the first-mentioned agency in respect of a request made to it shall be deemed to have been mad e 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 transferred to the care (within the meaning of the Archives Act 1983 ) of the National Archives of Australia—any request made to the agency shall be deemed to have been made to, and an y decision made by the agency in respect of a request made by it shall be deemed to have been made by, the agency to the functions of which the document the subject of the request most closely relates. (7) If the agency to which a request is so deemed to have been made, or by which a decision upon a request is so deemed to have been made, was not itself in existence at the time when the request or decision was deemed so to have been made, then, for the purposes only of dealing with that request or decision under this Act, that agency shall be deemed to have been in existence at that time. (8) For the purposes of this Act, where regulation s for the purposes of this subsection declare that an application fee is applicable in respect of an application under subsection 15(1) or 54(1), there shall be taken to be an application fee in respect of the application. (9) For the purposes of the application of the definition of responsible Minister in subsection (1) of this Act (other than sections 8 and 93), the reference in that definition to the Minister administering a Department is a reference to the Minister to whom t he Department is responsible in respect of the matter in respect of which this Act is being applied. Art 4 definition includes pretty much everything, but the blanket exemptions for documents held by agencies which are not exempt but which originated from agencies that are exempt costs them a point. Otherwise the scope is very broad - as confirmed by the case history cited in the information guide.
6 Requesters have a right to access both information and records/documents (i.e. a right both to ask for information and to apply for specific documents).Score 1 point for only documents, 1 point for information2 NO 4 Interpretation (1) In this Act, unless the contrary intention appears: ACT enactment means an enactment as defined by section 3 of the Australian Capital Territory (Self-Government) Act 1988 . agency means a Department, a prescribed authority or an eligible case manager. applicant means a person who has made a request. Cabinet notebook means a notebook or other like record that contains notes of discussions or deliberations taking place in a meeting of the Cabinet or of a committee of the Cabinet, being notes made in the course of those discussions or deliberations by, or under the authority of, the Secretary to the Cabinet. Commission of inquiry means: (a) the Commission of inquiry within the meaning o f the Quarantine Act 1908 ; or (b) a Commission of inquiry within the meaning of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 . Defence Imagery and Geospatial Organisation means that part of the Department of Defence known as the Defence Imagery and Geospatial Organisation. Defence Intelligence Organisation means that part of the Department of Defence known as the Defence Intelligence Organisation. Defence Signals Directorate means that part of the Department of Defence known as the Defence Signals Directorate. Department means a Department of the Australian Public Servic e that corresponds to a Department of State of the Co mmonwealth but does not include the branch of the Australian P ublic Service comprising the transitional staff as defined by sec tion 3 of the A.C.T. Self-Government (Consequential Provisions) A ct 1988 . document includes: (a) any of, or any part of any of, the following t hings: (i) any paper or other material on which there is writing; (ii) a map, plan, drawing or photograph; (iii) any paper or other material on which there a re marks, figures, symbols or perforations having a meaning f or persons qualified to interpret them; (iv) any article or material from which sounds, im ages or writings are capable of being reproduced with or without the aid of any other article or device; (v) any article on which information has been stor ed or recorded, either mechanically or electronically; (vi) any other record of information; or (b) any copy, reproduction or duplicate of such a thing; or (c) any part of such a copy, reproduction or dupli cate; but does not include: (d) library material maintained for reference purp oses; or (e) Cabinet notebooks. document of an agency or document of the agency means a document in the possession of an agency, or in the possession of the agency concerned, as the case requires, whether created in the agency or received in the agency. edited copy , in relation to a document, means a copy of the document from which deletions have been made under section 22. eligible case manager means an entity (within the meaning of the Employment Services Act 1994 ): (a) that is, or has at any time been, a contracted case manager within the meaning of that Act; and (b) that is not: (i) a Department; or (ii) a prescribed authority. enactment means, subject to section 4A: (a) an Act; (b) an Ordinance of the Australian Capital Territo ry; or (c) an instrument (including rules, regulations or by-laws) made under an Act or under such an Ordinance and include s an enactment as amended by another enactment. exempt content-service document means: (a) a document containing content, or a record of content (within the meaning of Schedule 7 to the Broadcasting Services Act 1992 ), that: (i) has been delivered by, or accessed using, a co ntent service (within the meaning of that Schedule); and (ii) was offensive content-service content when it was delivered by, or accessed using, that content servi ce; or (b) a document that sets out how to access, or tha t is likely to facilitate access to, offensive content-service con tent (for example, by setting out the name of a website, an I P address, a URL or a password). exempt document means: (a) a document which, by virtue of a provision of Part IV, is an exempt document; (b) a document in respect of which, by virtue of s ection 7, an agency, person or body is exempt from the operation of this Act; or (c) an official document of a Minister that contai ns some matter that does not relate to the affairs of an agency or of a Department of State. exempt internet-content document means: (a) a document containing information (within the meaning of Schedule 5 to the Broadcasting Services Act 1992 ) that: (i) has been copied from the internet; and (ii) was offensive internet content when it was ac cessible on the internet; or (b) a document that sets out how to access, or tha t is likely to facilitate access to, offensive internet content (f or example: by setting out the name of a website, an IP address , a URL, a password, or the name of a newsgroup). exempt matter means matter the inclusion of which in a document causes the document to be an exempt document. offensive content-service content means content (within the meaning of Schedule 7 to the Broadcasting Services Act 1992 ) that is: (a) delivered by, or accessed using, a content ser vice (within the meaning of that Schedule); and (b) either: (i) prohibited content (within the meaning of that Schedule); or (ii) potential prohibited content (within the mean ing of that Schedule). offensive internet content means internet content (within the meaning of Schedule 5 to the Broadcasting Services Act 1992 ) that is: (a) prohibited content (within the meaning of Schedule 5 to that Act as in force before the commencement of Schedule 7 to that Act); or (b) potential prohibited content (within the meaning of Schedule 5 to that Act as in force before the commencement of Schedule 7 to that Act). officer , in relation to an agency, includes a member of the agency or a member of the staff of the agency. official document of a Minister or official document of the Minister means a document that is in the possession of a Minister, or that is in the possession of the Minister concerned, as the case requires, in his or her capacity as a Minister, being a document that relates to the affairs of an agency or of a Department of State and, for the purposes of this definition, a Minister shall be deemed to be in possession of a document that has passed from hi s or her possession if he or she is entitled to access to th e document and the document is not a document of an agency. Ombudsman means the Commonwealth Ombudsman. Ordinance , in relation to the Australian Capital Territory, includes a law of a State that applies, or the provisions of a law of a State that apply, in the Territory by virtue of an enactment (other than a law that is, or provisions that are an ACT enactment). personal information means information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about a n individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. 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 or an Order-in-Council, other than: (i) an incorporated company or association; or (ii) a body that, under subsection (2), is not to be taken to be a prescribed authority for the purposes of this Act ; or (iii) the Australian Capital Territory House of Assembly; or (iv) the Legislative Assembly of the Northern Territory or the Executive Council of the Northern Territory; or (v) the Legislative Assembly of the Territory of Norfolk Island; or (vi) a Royal Commission; or (vii) a Commission of inquiry; (b) any other body, whether incorporated or unincorporated, declared by the regulations to be a prescribed authority for the purposes of this Act, being: (i) a body established by the Governor-General or by a Minister; or (ii) an incorporated company or association over which the Commonwealth 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 or an Order-in-Council; or (d) the person holding, or performing the duties o f, an appointment declared by the regulations to be an appointment the holder of which is a prescribed authority for t he purposes of this Act, being an appointment made by the Governor-General, or by a Minister, otherwise than under an enactment or an Order-in-Counc principal officer means: (a) in relation to a Department—the person holding , or performing the duties of, the office of Secretary o f the Department; or (b) in relation to a prescribed authority: (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, 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 he or she is present; or (c) in relation to an eligible case manager: (i) if the eligible case manager is an individual— the individual; or (ii) in any other case—the individual who has primary responsibility for the management of the eligible case manager. request means an application made under subsection 15(1). responsible Minister means: (a) in relation to a Department—the Minister administering the relevant Department of State; or (b) in relation to a prescribed authority referred to in paragraph (a) of the definition of prescribed authority —the Minister administering the part of the enactment by which, or in accordance with the provisions of which, the prescribed authority is established; or (c) in relation to a prescribed authority referred to in paragraph (c) of that definition—the Minister administering the part of the enactment by which the office is established; or (d) in relation to any other prescribed authority— the Minister declared by the regulations to be the responsible Minister in respect of that authority; or (e) in relation to an eligible case manager—the Minister administering the Employment Services Act 1994 ; or another Minister acting for and on behalf of that Minister. State includes the Australian Capital Territory and the Northern Territory. Tribunal means the Administrative Appeals Tribunal. (2) An unincorporated body, being a board, council , committee, sub-committee or other body established by, or in accordance with the provisions of, 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 deemed to be comprised within that prescribed authority. (3) A person shall not be taken to be a prescribed authority: (a) by virtue of his or her holding: (i) an office of member of the Legislative Assembly for the Australian Capital Territory; (ii) an office of member of the Legislative Assembly of the Northern Territory or of Administrator or of Minister of the Northern Territory; or (iii) an office of member of the Legislative Assembly of the Territory of Norfolk Island or of Administrator or Deputy Administrator of that Territory or an executive office created pursuant to section 12 of the Norfolk Island Act 1979 ; or (b) by virtue of his or her holding, or performing the duties of: (i) a prescribed office; (ii) an office the duties of which he or she performs as duties of his or her employment as an officer of a Department or as an officer of or under a prescribe d authority; (iii) an office of member of a body; or (iv) an office established by an enactment for the purposes of a prescribed authority. (4) For the purposes of this Act, the Department of Defence shall be deemed to include: (a) the Defence Force; (b) the Australian Army Cadets; (c) the Australian Navy Cadets; and (d) the Australian Air Force Cadets. (5) Without limiting the generality of the express ion security of the Commonwealth , that expression shall be taken to extend to: (a) matters relating to the detection, prevention or suppression of activities, whether within Australia or outside Australia, subversive of, or hostile to, the interests of the Commonwealth or of any country allied or associated with the Commonwealth; and (b) the security of any communications system or cryptographic system of the Commonwealth or of another country us ed for: (i) the defence of the Commonwealth or of any country allied or associated with the Commonwealth; or (ii) the conduct of the international relations of the Commonwealth. (6) Where an agency is abolished, then, for the purposes of this Act: (a) if the functions of the agency are acquired by another agency—any request made to the first-mentioned agency shall be deemed to have been made to, and any decision made by the first-mentioned agency in respect of a request made to it shall be deemed to have been made by, the other agency; and (b) if the functions of the agency are acquired by more than one other agency—any request made to the first-mentioned agency shall be deemed to have been made to, and an y decision made by the first-mentioned agency in respect of a request made to it shall be deemed to have been mad e 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 transferred to the care (within the meaning of the Archives Act 1983 ) of the National Archives of Australia—any request made to the agency shall be deemed to have been made to, and an y decision made by the agency in respect of a request made by it shall be deemed to have been made by, the agency to the functions of which the document the subject of the request most closely relates. (7) If the agency to which a request is so deemed to have been made, or by which a decision upon a request is so deemed to have been made, was not itself in existence at the time when the request or decision was deemed so to have been made, then, for the purposes only of dealing with that request or decision under this Act, that agency shall be deemed to have been in existence at that time. (8) For the purposes of this Act, where regulation s for the purposes of this subsection declare that an application fee is applicable in respect of an application under subsection 15(1) or 54(1), there shall be taken to be an application fee in respect of the application. (9) For the purposes of the application of the definition of responsible Minister in subsection (1) of this Act (other than sections 8 and 93), the reference in that definition to the Minister administering a Department is a reference to the Minister to whom t he Department is responsible in respect of the matter in respect of which this Act is being applied. Art 4 definition seems to suggest this, but the interpretation guide 3.34 states that there is no right to ask questions, or request anything that is not already in a documentary form.
7 The right of access applies to the executive branch with no bodies or classes of information excluded.This includes executive (cabinet) and adminsitration including all ministries, departments, local government, public schools, public health care bodies, the police, the armed forces, security services, and bodies owned or controlled by the above.Score 4 points for central government agencies covered: 1 for the head of state, 1 for ministries, 1 for other non-statutory agencies created by the ministries, 1 for state and local government if the government is unitary. If it´s a federalist system, 2 points for the non-statutory agencies. This can be determined by examining the length and thoroughness of the list, if such a schedule exists. Score 1 point for the archives. Add three points and deduct 1 for each exempted central agency (such as the armed forces, police, etc).8 Partially 6. "Act to apply to certain tribunals in respect of administrative matters For the purposes of this Act: (a) each tribunal, authority or body specified in Schedule 1 is deemed to be a prescribed authority(...)" 13. "Documents in certain institutions (1) A document shall not be deemed to be a documen t of an agency for the purposes of this Act by reason of its being(...) d) in the care (within the meaning of the Archives Act 1983 ) of the National Archives of Australia (otherwise than as a document relating to the administration of the Nati onal Archives of Australia)(...)" Applies to the PM and Cabinet and bodies created by law or order of the ministries. Does not apply to state governments - but this does not cost a point as it is a result of Australia's federal structure. 6(a) - does not apply to the governor general. 13(d) - does not apply to the archives - though there is seperate legislation governing this. Does not apply to intelligence agencies or defence agencies, the Auditor General, the Government Solicitor, National Workplace Relations Consultative Council, and the Aboriginal Land Councils and Land Trusts
8 The right of access applies to the legislature, including both administrative and other information, with no bodies excluded. Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all legislative branch at all levels of government4 NO 4 Interpretation (1) In this Act, unless the contrary intention appears: ACT enactment means an enactment as defined by section 3 of the Australian Capital Territory (Self-Government) Act 1988 . agency means a Department, a prescribed authority or an eligible case manager. applicant means a person who has made a request. Cabinet notebook means a notebook or other like record that contains notes of discussions or deliberations taking place in a meeting of the Cabinet or of a committee of the Cabinet, being notes made in the course of those discussions or deliberations by, or under the authority of, the Secretary to the Cabinet. Commission of inquiry means: (a) the Commission of inquiry within the meaning o f the Quarantine Act 1908 ; or (b) a Commission of inquiry within the meaning of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 . Defence Imagery and Geospatial Organisation means that part of the Department of Defence known as the Defence Imagery and Geospatial Organisation. Defence Intelligence Organisation means that part of the Department of Defence known as the Defence Intelligence Organisation. Defence Signals Directorate means that part of the Department of Defence known as the Defence Signals Directorate. Department means a Department of the Australian Public Servic e that corresponds to a Department of State of the Co mmonwealth but does not include the branch of the Australian P ublic Service comprising the transitional staff as defined by sec tion 3 of the A.C.T. Self-Government (Consequential Provisions) A ct 1988 . document includes: (a) any of, or any part of any of, the following t hings: (i) any paper or other material on which there is writing; (ii) a map, plan, drawing or photograph; (iii) any paper or other material on which there a re marks, figures, symbols or perforations having a meaning f or persons qualified to interpret them; (iv) any article or material from which sounds, im ages or writings are capable of being reproduced with or without the aid of any other article or device; (v) any article on which information has been stor ed or recorded, either mechanically or electronically; (vi) any other record of information; or (b) any copy, reproduction or duplicate of such a thing; or (c) any part of such a copy, reproduction or dupli cate; but does not include: (d) library material maintained for reference purp oses; or (e) Cabinet notebooks. document of an agency or document of the agency means a document in the possession of an agency, or in the possession of the agency concerned, as the case requires, whether created in the agency or received in the agency. edited copy , in relation to a document, means a copy of the document from which deletions have been made under section 22. eligible case manager means an entity (within the meaning of the Employment Services Act 1994 ): (a) that is, or has at any time been, a contracted case manager within the meaning of that Act; and (b) that is not: (i) a Department; or (ii) a prescribed authority. enactment means, subject to section 4A: (a) an Act; (b) an Ordinance of the Australian Capital Territo ry; or (c) an instrument (including rules, regulations or by-laws) made under an Act or under such an Ordinance and include s an enactment as amended by another enactment. exempt content-service document means: (a) a document containing content, or a record of content (within the meaning of Schedule 7 to the Broadcasting Services Act 1992 ), that: (i) has been delivered by, or accessed using, a co ntent service (within the meaning of that Schedule); and (ii) was offensive content-service content when it was delivered by, or accessed using, that content servi ce; or (b) a document that sets out how to access, or tha t is likely to facilitate access to, offensive content-service con tent (for example, by setting out the name of a website, an I P address, a URL or a password). exempt document means: (a) a document which, by virtue of a provision of Part IV, is an exempt document; (b) a document in respect of which, by virtue of s ection 7, an agency, person or body is exempt from the operation of this Act; or (c) an official document of a Minister that contai ns some matter that does not relate to the affairs of an agency or of a Department of State. exempt internet-content document means: (a) a document containing information (within the meaning of Schedule 5 to the Broadcasting Services Act 1992 ) that: (i) has been copied from the internet; and (ii) was offensive internet content when it was ac cessible on the internet; or (b) a document that sets out how to access, or tha t is likely to facilitate access to, offensive internet content (f or example: by setting out the name of a website, an IP address , a URL, a password, or the name of a newsgroup). exempt matter means matter the inclusion of which in a document causes the document to be an exempt document. offensive content-service content means content (within the meaning of Schedule 7 to the Broadcasting Services Act 1992 ) that is: (a) delivered by, or accessed using, a content ser vice (within the meaning of that Schedule); and (b) either: (i) prohibited content (within the meaning of that Schedule); or (ii) potential prohibited content (within the mean ing of that Schedule). offensive internet content means internet content (within the meaning of Schedule 5 to the Broadcasting Services Act 1992 ) that is: (a) prohibited content (within the meaning of Schedule 5 to that Act as in force before the commencement of Schedule 7 to that Act); or (b) potential prohibited content (within the meaning of Schedule 5 to that Act as in force before the commencement of Schedule 7 to that Act). officer , in relation to an agency, includes a member of the agency or a member of the staff of the agency. official document of a Minister or official document of the Minister means a document that is in the possession of a Minister, or that is in the possession of the Minister concerned, as the case requires, in his or her capacity as a Minister, being a document that relates to the affairs of an agency or of a Department of State and, for the purposes of this definition, a Minister shall be deemed to be in possession of a document that has passed from hi s or her possession if he or she is entitled to access to th e document and the document is not a document of an agency. Ombudsman means the Commonwealth Ombudsman. Ordinance , in relation to the Australian Capital Territory, includes a law of a State that applies, or the provisions of a law of a State that apply, in the Territory by virtue of an enactment (other than a law that is, or provisions that are an ACT enactment). personal information means information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about a n individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. 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 or an Order-in-Council, other than: (i) an incorporated company or association; or (ii) a body that, under subsection (2), is not to be taken to be a prescribed authority for the purposes of this Act ; or (iii) the Australian Capital Territory House of Assembly; or (iv) the Legislative Assembly of the Northern Territory or the Executive Council of the Northern Territory; or (v) the Legislative Assembly of the Territory of Norfolk Island; or (vi) a Royal Commission; or (vii) a Commission of inquiry; (b) any other body, whether incorporated or unincorporated, declared by the regulations to be a prescribed authority for the purposes of this Act, being: (i) a body established by the Governor-General or by a Minister; or (ii) an incorporated company or association over which the Commonwealth 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 or an Order-in-Council; or (d) the person holding, or performing the duties o f, an appointment declared by the regulations to be an appointment the holder of which is a prescribed authority for t he purposes of this Act, being an appointment made by the Governor-General, or by a Minister, otherwise than under an enactment or an Order-in-Counc principal officer means: (a) in relation to a Department—the person holding , or performing the duties of, the office of Secretary o f the Department; or (b) in relation to a prescribed authority: (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, 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 he or she is present; or (c) in relation to an eligible case manager: (i) if the eligible case manager is an individual— the individual; or (ii) in any other case—the individual who has primary responsibility for the management of the eligible case manager. request means an application made under subsection 15(1). responsible Minister means: (a) in relation to a Department—the Minister administering the relevant Department of State; or (b) in relation to a prescribed authority referred to in paragraph (a) of the definition of prescribed authority —the Minister administering the part of the enactment by which, or in accordance with the provisions of which, the prescribed authority is established; or (c) in relation to a prescribed authority referred to in paragraph (c) of that definition—the Minister administering the part of the enactment by which the office is established; or (d) in relation to any other prescribed authority— the Minister declared by the regulations to be the responsible Minister in respect of that authority; or (e) in relation to an eligible case manager—the Minister administering the Employment Services Act 1994 ; or another Minister acting for and on behalf of that Minister. State includes the Australian Capital Territory and the Northern Territory. Tribunal means the Administrative Appeals Tribunal. Parliamentary departments, the House and the Senate are excluded under 4(1) - confirmed by 3.9 of the interpretation guide. Nor are MP's individually subject to the Act.
9 The right of access applies to the judicial branch, including both administrative and other information, with no bodies excluded. Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all judicial branch at all levels of government4 Partially 5 Act to apply to courts in respect of administrat ive matters For the purposes of this Act: (a) a court shall be deemed to be a prescribed aut hority; (b) the holder of a judicial office or other offic e pertaining to a court in his or her capacity as the holder of that office, being an office established by the legislation establishi ng the court, shall be deemed not to be a prescribed authority an d shall not be included in a Department; and (c) a registry or other office of a court, and the staff of such a registry or other office when acting in a capacity as members of that staff, shall be taken as a part of the cour t; but this Act does not apply to any request for acce ss to a document of the court unless the document relates to matters of an administrative nature. Art 5 - only to administrative documents, and with an additional exemption for holders of judicial office.
10 The right of access applies to State-owned enterprises (commercial entities that are owned or controlled by the State). Score 1 point if some, 2 points if all2 NO These agencies can be made subject to the act through regulation, but are not mandated to be covered.
11 The right of access applies to other public authorities, including constitutional, statutory and oversight bodies (such as an election commission or information commission/er). Score 1 point if some bodies, 2 points if all2 NO There is a patchwork of clauses relating to various tribunals, agencies and commissions, most of which are only subject to the law if included by regulation. The regime is far too convoluted and riddled with exceptions to merit a point here.
12 The right of access applies to a) private bodies that perform a public function and b) private bodies that receive significant public funding. 1 point for public functions, 1 point for public funding 2 NO These agencies can be made subject to the act through regulation, but are not mandated to be covered.

Requesting Procedures

Indicator

Description

Scoring instructions
MAX score
Findings

Points

Article

Comments
13 Requesters are not required to provide reasons for their requests.Y/N answer 0 or 2 points2 YES 11(2) Subject to this Act, a person’s right of acces s is not affected by: (a) any reasons the person gives for seeking acces s; or (b) the agency’s or Minister’s belief as to what a re his or her reasons for seeking access.
14 Requesters are only required to provide the details necessary for identifying and delivering the information (i.e. some form of address for delivery).Score Max 2 points and deduct if requesters are required to give any of the following: ID number, telephone number, residential address, etc.2 Partially 15 (2) The request must: (a) be in writing; and (b) provide such information concerning the docume nt as is reasonably necessary to enable a responsible office r of the agency, or the Minister, to identify it; and (c) specify an address in Australia at which notic es under this Act may be sent to the applicant; and (d) be sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of t he Minister, at the address of any central or regional office of the agency or Minister specified in a current telephone direct ory; and (e) be accompanied by the fee payable under the re gulations in respect of the request. 15(2) - Requirement to cite the act.
15 There are clear and relatively simple procedures for making requests. Requests may be submitted by any means of communication, with no requirement to use official forms or to state that the information is being requested under the access to information law.Max 2 points. Considerations include that there is no requirement to state that the request is under the RTI law, nor to use an official form, nor to identify the document being sought. 2 Partially 15 (2) The request must: (a) be in writing; and (b) provide such information concerning the docume nt as is reasonably necessary to enable a responsible office r of the agency, or the Minister, to identify it; and (c) specify an address in Australia at which notic es under this Act may be sent to the applicant; and (d) be sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of t he Minister, at the address of any central or regional office of the agency or Minister specified in a current telephone direct ory; and (e) be accompanied by the fee payable under the re gulations in respect of the request. 15(2) - requests must be in writing, however s 15 provides a relatively clear and simple procedure.
16 Public officials are required provide assistance to help requesters formulate their requests, or to contact and assist requesters where requests that have been made are vague, unduly broad or otherwise need clarification. Score 1 point for help in formulation and 1 point for clarification procedures2 YES 15 (3) Where a person: (a) wishes to make a request to an agency; or (b) has made to an agency a request that does not comply with this section; it is the duty of the agency to take reasonable ste ps to assist the person to make the request in a manner that complie s with this section.
17     Public officials are required to provide assistance to requesters who require it because of special needs, for example because they are illiterate or disabled.Score Yes=2 point, No=02 YES 15 (3) Where a person: (a) wishes to make a request to an agency; or (b) has made to an agency a request that does not comply with this section; it is the duty of the agency to take reasonable ste ps to assist the person to make the request in a manner that complie s with this section. 15(3) general duty to assist seems to cover this, when read in the context of Australia's Disability Discrimination Act
18 Requesters are provided with a receipt or acknowledgement upon lodging a request within a reasonable timeframe, which should not exceed 5 working daysScore 1 point for receipt, 1 point for max 5 working days2 NO No - only requirement is more "notification" within 14 days.
19 Clear and appropriate procedures are in place for situations where the authority to which a request is directed does not have the requested information. This includes an obligation to inform the requester that the information is not held and to refer the requester to another institution or to transfer the request where the public authority knows where the information is held.Score: 1 point for information not held, 1 for referrals or 2 for transfers2 Partially 15 (4) Where a person has directed to an agency a req uest that should have been directed to another agency or to a Minist er, it is the duty of the first-mentioned agency to take reasonable st eps to assist the person to direct the request to the appropriate age ncy or Minister. 16 Transfer of requests (1) Where a request is made to an agency for acces s 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 clo sely connected with the functions of another agency than with thos e of the agency to which the request is made; the agency to which the request is made may, with t he agreement of the other agency, transfer the request to the ot her agency. (2) Where a request is made to an agency for acces s to a document that: (a) originated with, or has been received from, a body which, or person who, is specified in Part I of Schedule 2; a nd (b) is more closely connected with the functions o f that body or person than with those of the agency to which the r equest is made; the request shall be transferred: (c) to the Department corresponding to the Departm ent of State administered by the Minister who administers the en actment by or under which the body or person is established , continued in existence or appointed; or (d) if the request relates to a document that orig inated with, or has been received from, a part of the Department of Defence specified in Division 2 of Part I of Schedule 2—to that Department. (3) Where a request is made to an agency for acces s to a document that: (a) originated in, or has been received from, anot her agency, being an agency specified in Part II of Schedule 2 or an agency that is a body corporate established by or u nder an Act specified in Part III of Schedule 2; and (b) is more closely connected with the functions o f the other agency in relation to documents in respect of which the other agency is exempt from the operation of this Act tha n with the functions of the agency to which the request is mad e; the agency to which the request is made shall trans fer the request to the other agency. (3A) Where: (a) a request is made to an agency for access to m ore than one document; and b) one or more of those documents is a document t o which subsection (1), (2) or (3) applies; this section applies to each of those documents as if separate requests for access had been made to the agency in respect of each of those documents. (4) Where a request is transferred to an agency in accordance with this section, the agency making the transfer shall infor m the person making the request accordingly and, if it is necess ary to do so in order to enable the other agency to deal with the r equest, send the document to the other agency. (5) Where a request is transferred to an agency in accordance with this section, the request is to be taken to be a request : (a) made to the agency for access to the document that is the subject of the transfer; and (b) received by the agency at the time at which it was first received by an agency. (6) In this section, agency includes a Minister. 15(4) - requirement to refer. Art 16 mentions transfers, but allows them where info is more closely related to another organization, and transfers are not mandatory where the agency doesn't have the info.
20 Public authorities are required to comply with requesters’ preferences regarding how they access information, subject only to clear and limited overrides (e.g. to protect a record).Score: 2 points for Yes, only 1 point if some limitations2 YES 20 Forms of access (1) Access to a document may be given to a person in one or more of the following forms: (a) a reasonable opportunity to inspect the docume nt; (b) provision by the agency or Minister of a copy of the document; (c) in the case of a document that is an article o r thing from which sounds or visual images are capable of being reproduced, the making of arrangements for the pers on to hear or view those sounds or visual images; (d) in the case of a document by which words are r ecorded in a manner in which they are capable of being reproduce d in the form of sound or in which words are contained in th e form of shorthand writing or in codified form, provision by the agency or Minister of a written transcript of the w ords recorded or contained in the document. (2) Subject to subsection (3) and to section 22, w here 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 operatio ns of the agency, or the performance by the Minister of his o r her functions, as the case may be; (b) would be detrimental to the preservation of th e document or, having regard to the physical nature of the documen t, would not be appropriate; or (c) would, but for this Act, involve an infringeme nt of copyright (other than copyright owned by the Commonwealth, an agency or a State) subsisting in matter contained i n the document, being matter that does not relate to the affairs of an agency or of a Department of State; access in that form may be refused and access given in another form. (4) Subject to subsection 17(1), where a person re quests access to a document in a particular form and, for a reason spe cified in subsection (3), access in that form is refused but access is given in another form, the applicant shall not be required t o pay a charge in respect of the provision of access to the document that is greater than the charge that he or she would have been requ ired to pay if access had been given in the form requested.
21 Public authorities are required to respond to requests as soon as possible.Score: No=0, Yes=2 points 2 YES 15(5)(b) Requests for Access " On receiving a request, the agency or Minister must: <...> b) as soon as practicable <...> take all reasonable steps to enable the applicant to be noti fied of a decision on the request (including a decision under section 21 to defer the provision of access to a document)."
22 There are clear and reasonable maximum timelines (20 working days or less) for responding to requests, regardless of the manner of satisfying the request (including through publication).Score: 1 point for timeframes of 20 working days (or 1 month, 30 days or 4 weeks). Score 2 points for 10 working days (or 15 days, or two weeks) or less.2 NO 15(5)(b) Requests for Access " On receiving a request, the agency or Minister must: <...> b) as soon as practicable but in any case not lat er than the end of the period of 30 days after the day on which the re quest is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified of a decision on the request (including a decision under section 21 to defer the provision of access to a document)." 15(5)(b) - 30 days… but there are a couple of problems with this: the time limit relates only to a decision on access, not to access itself. Plus, the agency can extend the timeline in definitely with the requester's permission. Combined with the ability to agencies to refuse requests that unreasonably divert resources, this gives them too much wiggle room to deserve a point.
23 There are clear limits on timeline extensions (20 working days or less), including a requirement that requesters be notified and provided with the reasons for the extension.---2 YES 15(6) Where, in relation to a request, the agency or Minister determines in writing that the requirements of section 26A, 27 or 27A make it appropriate to extend the period referred to in par agraph (5)(b): (a) the period is to be taken to be extended by a further period of 30 days; and (b) the agency or Minister must, as soon as practi cable, inform the applicant that the period has been so extended.
24 It is free to file requests.Score: No=0, Yes=2 points2 YES http://www.oaic.gov.au/foi-portal/about_foi.html#reforms = no application fees (anymore!)
25 There are clear rules relating to access fees, which are set centrally, rather than being determined by individual public authorities. These include a requirement that fees be limited to the cost of reproducing and sending the information (so that inspection of documents and electronic copies are free) and a certain initial number of pages (at least 20) are provided for free. Score 1 point for fees being limited to reproduction and delivery costs and set centrally, 1 point for at least 20 pages free of charge or for fees being optional2 NO http://www.arc.gov.au/about_arc/freedom_information.htm - website shows that this agency charges for time spent locating the documents, as well as time spent on "decision making and consultation" as well as paying for supervised inspection time. So - not limited to cost of reproduction. Also - Aus. gov't says that that the final amount to be charged is discretionary: http://www.dpmc.gov.au/foi/docs/FOI_fees_charges.pdf - so not centrally set.
26   There are fee waivers for impecunious requesters ---2 YES 29 Charges (1) Where, under the regulations, an agency or Min ister decides that an applicant is liable to pay a charge (not being an a pplication fee) in respect of a request for access to a document, or t he provision of access to a document, the agency or Minister must g ive to the applicant a written notice stating: (a) that the applicant is liable to pay a charge; and (b) the agency’s or Minister’s preliminary assessm ent of the amount of the charge, and the basis on which the as sessment is made; and (c) that the applicant may contend that the charge has been wrongly assessed, or should be reduced or not impos ed; and (d) the matters that the agency or Minister must t ake into account under subsection (5) in deciding whether or not to reduce, or not impose, the charge; and e) the amount of any deposit that the agency or M inister has determined, under the regulations, that the applica nt will be required to pay if the charge is imposed; and (f) that the applicant must, within the period of 30 days, or such further period as the agency or Minister allows, af ter the notice was given, notify the agency or Minister in writing: (i) of the applicant’s agreement to pay the charge ; or (ii) if the applicant contends that the charge has been wrongly assessed, or should be reduced or not impos ed, or both—that the applicant so contends, giving the applicant’s reasons for so contending; or (iii) that the applicant withdraws the request for access to the document concerned; and (g) that if the applicant fails to give the agency or Minister such a notice within that period or further period, the request for access to the document will be taken to have been withdrawn. (2) If the applicant fails to notify the agency or Minister in a manner mentioned in paragraph (1)(f) within the period or further period mentioned in that paragraph, the applicant is to be taken to have withdrawn the request for access to the document co ncerned. (3) An agency or Minister must not impose a charge in respect of a request for access to a document, or the provision of access to a document, until: (a) the applicant has notified the agency or Minis ter in a manner mentioned in paragraph (1)(f); or (b) the end of the period or further period mentio ned in that paragraph. (4) Where the applicant has notified the agency or Minister, in a manner mentioned in subparagraph (1)(f)(ii), that t he applicant contends that the charge should be reduced or not i mposed, the agency or Minister may decide that the charge is to be reduced or not to be imposed. (5) Without limiting the matters the agency or Min ister may take into account in determining whether or not to reduce or not to impose the charge, the agency or Minister must take into a ccount: (a) whether the payment of the charge, or part of it, would cause financial hardship to the applicant, or to a person on whose behalf the application was made; and (b) whether the giving of access to the document i n question is in the general public interest or in the interest of a substantial section of the public. (6) If the applicant has notified the agency or Mi nister in the manner mentioned in subparagraph (1)(f)(ii), the agency or Minister must take all reasonable steps to enable the applicant t o be notified of the decision on the amount of charge payable as soo n as practicable but in any case no later than 30 days a fter the day on which the applicant so notified the agency or Minis ter. (7) If: (a) that period of 30 days has elapsed since the d ay on which the agency or Minister was so notified; and (b) the applicant has not received notice of a dec ision on the amount of charge payable; the principal officer of the agency, or the Ministe r, as the case requires, is, for all purposes of this Act, taken t o have made, on the last day of the period, a decision to the effect th at the amount of charge payable is the amount equal to the agency’s or Minister’s preliminary assessment of the amount of the charge mentioned in paragraph (1)(b). (8) If: (a) the applicant makes a contention about a charg e as mentioned in subsection (4); and (b) the agency or Minister makes a decision to rej ect the contention, in whole or in part; the agency or Minister, as the case requires, must give the applicant written notice of the decision and of the reasons for the decision. Note: Section 25D of the Acts Interpretation Act 1901 sets out rules about the contents of a statement of reason (9) A notice under subsection (8) must also state the name and designation of the person making the decision and g ive the applicant appropriate information about: (a) his or her rights with respect to review of th e decision; and (b) his or her rights to make a complaint to the O mbudsman in relation to the decision; and (c) the procedure for the exercise of those rights ; including (where applicable) particulars of the man ner in which an application for review under section 54 may be made . (10) Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a decision referred to in subsect ion (8). (11) A notice under subsection (8) is not required to contain any matter that is of such a nature that its inclusion in a do cument of an agency would cause that document to be an exempt document. 30A Remission of application fees (1) Where: (a) there is, in respect of an application to an a gency or Minister under subsection 15(1) requesting access to a docum ent or under subsection 54(1) requesting a review of a dec ision relating to a document, an application fee (whether or not the fee has been paid); and (b) the agency or Minister considers that the fee or a part of the fee should be remitted for any reason, including ei ther of the following reasons: (i) the payment of the fee or of the part of the f ee would cause or caused financial hardship to the applicant or a person on whose behalf the application was made; (iii) the giving of access is in the general publi c interest or in the interest of a substantial section of the public ; the agency or Minister may remit the fee or the par t of the fee. (1A) The applicant may make a written request for the application fee to be wholly or partly remitted under subsection (1). The agency or Minister must take all reasonable steps to enable t he applicant to be notified of the decision on the request as soon as practicable, but in any case no later than 30 days after the day on whi ch the request was made. (1B) If: (a) that period of 30 days has ended; and (b) the applicant has not received notice of a dec ision on the request; the agency or the Minister, as the case requires, i s taken, for all purposes of this Act, to have made, on the last day of the period, a decision to the effect that no part of the applicat ion fee is to be remitted. (2) Where the whole or a part of an application fe e is remitted under subsection (1), then, to the extent of the remissio n, there shall not, for the purposes of subsection 15(2) or 54(1), as t he case may be, be taken to be an application fee in respect of the application. (3) If: (a) a person makes a written request for an applic ation fee to be remitted, in whole or in part; and (b) the agency or Minister makes a decision to ref use the request, in whole or in part; the agency or Minister, as the case requires, must give the applicant written notice of the reasons for the dec ision. Note: Section 25D of the Acts Interpretation Act 1901 sets out rules about the contents of a statement of reasons. (4) A notice under subsection (3) must also state the name and designation of the person making the decision and g ive the applicant appropriate information about: (a) his or her rights with respect to review of th e decision; and (b) his or her rights to make a complaint to the O mbudsman in relation to the decision; and (c) the procedure for the exercise of those rights ; including (where applicable) particulars of the man ner in which an application for review under section 54 may be made . (5) Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a decision referred to in subsect ion (3). (6) A notice under subsection (3) is not required to contain any matter that is of such a nature that its inclusion in a do cument of an agency would cause that document to be an exempt do cument. Art 30A and Art 29. Also - http://www.dpmc.gov.au/foi/docs/FOI_fees_charges.pdf
27 There are no limitations on or charges for reuse of information received from public bodies, except where a third party (which is not a public authority) holds a legally-protected copyright over the information. Score: No=0, Yes=2 points2 YES Reinforced by 5.6 of interpretation document.


Exceptions

Indicator

Description

Scoring instructions
MAX score
Findings

Points

Article

Comments
28 The standards in the RTI Law trump restrictions on information disclosure (secrecy provisions) in other legislation to the extent of any conflict.Score 4 points for a resounding "yes" and 1/2/3 points if only for some classes of information or for some exceptions. If the state secrets law is not trumped by the RTI law max score is 2 points. 4 NO Schedule 3 contains a list of other laws which apply.
29 The exceptions to the right of access are consistent with international standards. Permissible exceptions are: national security; international relations; public health and safety; the prevention, investigation and prosecution of legal wrongs; privacy; legitimate commercial and other economic interests; management of the economy; fair administration of justice and legal advice privilege; conservation of the environment; and legitimate policy making and other operations of public authorities. It is also permissible to refer requesters to information which is already publicly available, for example online or in published form.Score 10 points and then deduct 1 point for each exception which either (a) falls outside of this list and/or (b) is more broadly framed10 YES 4 Interpretation (1) In this Act, unless the contrary intention appears: ACT enactment means an enactment as defined by section 3 of the Australian Capital Territory (Self-Government) Act 1988 . agency means a Department, a prescribed authority or an eligible case manager. applicant means a person who has made a request. Cabinet notebook means a notebook or other like record that contains notes of discussions or deliberations taking place in a meeting of the Cabinet or of a committee of the Cabinet, being notes made in the course of those discussions or deliberations by, or under the authority of, the Secretary to the Cabinet. Commission of inquiry means: (a) the Commission of inquiry within the meaning o f the Quarantine Act 1908 ; or (b) a Commission of inquiry within the meaning of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 . Defence Imagery and Geospatial Organisation means that part of the Department of Defence known as the Defence Imagery and Geospatial Organisation. Defence Intelligence Organisation means that part of the Department of Defence known as the Defence Intelligence Organisation. Defence Signals Directorate means that part of the Department of Defence known as the Defence Signals Directorate. Department means a Department of the Australian Public Servic e that corresponds to a Department of State of the Co mmonwealth but does not include the branch of the Australian P ublic Service comprising the transitional staff as defined by sec tion 3 of the A.C.T. Self-Government (Consequential Provisions) A ct 1988 . document includes: (a) any of, or any part of any of, the following t hings: (i) any paper or other material on which there is writing; (ii) a map, plan, drawing or photograph; (iii) any paper or other material on which there a re marks, figures, symbols or perforations having a meaning f or persons qualified to interpret them; (iv) any article or material from which sounds, im ages or writings are capable of being reproduced with or without the aid of any other article or device; (v) any article on which information has been stor ed or recorded, either mechanically or electronically; (vi) any other record of information; or (b) any copy, reproduction or duplicate of such a thing; or (c) any part of such a copy, reproduction or dupli cate; but does not include: (d) library material maintained for reference purp oses; or (e) Cabinet notebooks. document of an agency or document of the agency means a document in the possession of an agency, or in the possession of the agency concerned, as the case requires, whether created in the agency or received in the agency. edited copy , in relation to a document, means a copy of the document from which deletions have been made under section 22. eligible case manager means an entity (within the meaning of the Employment Services Act 1994 ): (a) that is, or has at any time been, a contracted case manager within the meaning of that Act; and (b) that is not: (i) a Department; or (ii) a prescribed authority. enactment means, subject to section 4A: (a) an Act; (b) an Ordinance of the Australian Capital Territo ry; or (c) an instrument (including rules, regulations or by-laws) made under an Act or under such an Ordinance and include s an enactment as amended by another enactment. exempt content-service document means: (a) a document containing content, or a record of content (within the meaning of Schedule 7 to the Broadcasting Services Act 1992 ), that: (i) has been delivered by, or accessed using, a co ntent service (within the meaning of that Schedule); and (ii) was offensive content-service content when it was delivered by, or accessed using, that content servi ce; or (b) a document that sets out how to access, or tha t is likely to facilitate access to, offensive content-service con tent (for example, by setting out the name of a website, an I P address, a URL or a password). exempt document means: (a) a document which, by virtue of a provision of Part IV, is an exempt document; (b) a document in respect of which, by virtue of s ection 7, an agency, person or body is exempt from the operation of this Act; or (c) an official document of a Minister that contai ns some matter that does not relate to the affairs of an agency or of a Department of State. exempt internet-content document means: (a) a document containing information (within the meaning of Schedule 5 to the Broadcasting Services Act 1992 ) that: (i) has been copied from the internet; and (ii) was offensive internet content when it was ac cessible on the internet; or (b) a document that sets out how to access, or tha t is likely to facilitate access to, offensive internet content (f or example: by setting out the name of a website, an IP address , a URL, a password, or the name of a newsgroup). exempt matter means matter the inclusion of which in a document causes the document to be an exempt document. offensive content-service content means content (within the meaning of Schedule 7 to the Broadcasting Services Act 1992 ) that is: (a) delivered by, or accessed using, a content ser vice (within the meaning of that Schedule); and (b) either: (i) prohibited content (within the meaning of that Schedule); or (ii) potential prohibited content (within the mean ing of that Schedule). offensive internet content means internet content (within the meaning of Schedule 5 to the Broadcasting Services Act 1992 ) that is: (a) prohibited content (within the meaning of Schedule 5 to that Act as in force before the commencement of Schedule 7 to that Act); or (b) potential prohibited content (within the meaning of Schedule 5 to that Act as in force before the commencement of Schedule 7 to that Act). officer , in relation to an agency, includes a member of the agency or a member of the staff of the agency. official document of a Minister or official document of the Minister means a document that is in the possession of a Minister, or that is in the possession of the Minister concerned, as the case requires, in his or her capacity as a Minister, being a document that relates to the affairs of an agency or of a Department of State and, for the purposes of this definition, a Minister shall be deemed to be in possession of a document that has passed from hi s or her possession if he or she is entitled to access to th e document and the document is not a document of an agency. Ombudsman means the Commonwealth Ombudsman. Ordinance , in relation to the Australian Capital Territory, includes a law of a State that applies, or the provisions of a law of a State that apply, in the Territory by virtue of an enactment (other than a law that is, or provisions that are an ACT enactment). personal information means information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about a n individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. 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 or an Order-in-Council, other than: (i) an incorporated company or association; or (ii) a body that, under subsection (2), is not to be taken to be a prescribed authority for the purposes of this Act ; or (iii) the Australian Capital Territory House of Assembly; or (iv) the Legislative Assembly of the Northern Territory or the Executive Council of the Northern Territory; or (v) the Legislative Assembly of the Territory of Norfolk Island; or (vi) a Royal Commission; or (vii) a Commission of inquiry; (b) any other body, whether incorporated or unincorporated, declared by the regulations to be a prescribed authority for the purposes of this Act, being: (i) a body established by the Governor-General or by a Minister; or (ii) an incorporated company or association over which the Commonwealth 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 or an Order-in-Council; or (d) the person holding, or performing the duties o f, an appointment declared by the regulations to be an appointment the holder of which is a prescribed authority for t he purposes of this Act, being an appointment made by the Governor-General, or by a Minister, otherwise than under an enactment or an Order-in-Counc principal officer means: (a) in relation to a Department—the person holding , or performing the duties of, the office of Secretary o f the Department; or (b) in relation to a prescribed authority: (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, 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 he or she is present; or (c) in relation to an eligible case manager: (i) if the eligible case manager is an individual— the individual; or (ii) in any other case—the individual who has primary responsibility for the management of the eligible case manager. request means an application made under subsection 15(1). responsible Minister means: (a) in relation to a Department—the Minister administering the relevant Department of State; or (b) in relation to a prescribed authority referred to in paragraph (a) of the definition of prescribed authority —the Minister administering the part of the enactment by which, or in accordance with the provisions of which, the prescribed authority is established; or (c) in relation to a prescribed authority referred to in paragraph (c) of that definition—the Minister administering the part of the enactment by which the office is established; or (d) in relation to any other prescribed authority— the Minister declared by the regulations to be the responsible Minister in respect of that authority; or (e) in relation to an eligible case manager—the Minister administering the Employment Services Act 1994 ; or another Minister acting for and on behalf of that Minister. State includes the Australian Capital Territory and the Northern Territory. Tribunal means the Administrative Appeals Tribunal. (2) An unincorporated body, being a board, council , committee, sub-committee or other body established by, or in accordance with the provisions of, 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 deemed to be comprised within that prescribed authority. (3) A person shall not be taken to be a prescribed authority: (a) by virtue of his or her holding: (i) an office of member of the Legislative Assembly for the Australian Capital Territory; (ii) an office of member of the Legislative Assembly of the Northern Territory or of Administrator or of Minister of the Northern Territory; or (iii) an office of member of the Legislative Assembly of the Territory of Norfolk Island or of Administrator or Deputy Administrator of that Territory or an executive office created pursuant to section 12 of the Norfolk Island Act 1979 ; or (b) by virtue of his or her holding, or performing the duties of: (i) a prescribed office; (ii) an office the duties of which he or she performs as duties of his or her employment as an officer of a Department or as an officer of or under a prescribe d authority; (iii) an office of member of a body; or (iv) an office established by an enactment for the purposes of a prescribed authority. (4) For the purposes of this Act, the Department of Defence shall be deemed to include: (a) the Defence Force; (b) the Australian Army Cadets; (c) the Australian Navy Cadets; and (d) the Australian Air Force Cadets. (5) Without limiting the generality of the express ion security of the Commonwealth , that expression shall be taken to extend to: (a) matters relating to the detection, prevention or suppression of activities, whether within Australia or outside Australia, subversive of, or hostile to, the interests of the Commonwealth or of any country allied or associated with the Commonwealth; and (b) the security of any communications system or cryptographic system of the Commonwealth or of another country us ed for: (i) the defence of the Commonwealth or of any country allied or associated with the Commonwealth; or (ii) the conduct of the international relations of the Commonwealth. (6) Where an agency is abolished, then, for the purposes of this Act: (a) if the functions of the agency are acquired by another agency—any request made to the first-mentioned agency shall be deemed to have been made to, and any decision made by the first-mentioned agency in respect of a request made to it shall be deemed to have been made by, the other agency; and (b) if the functions of the agency are acquired by more than one other agency—any request made to the first-mentioned agency shall be deemed to have been made to, and an y decision made by the first-mentioned agency in respect of a request made to it shall be deemed to have been mad e 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 transferred to the care (within the meaning of the Archives Act 1983 ) of the National Archives of Australia—any request made to the agency shall be deemed to have been made to, and an y decision made by the agency in respect of a request made by it shall be deemed to have been made by, the agency to the functions of which the document the subject of the request most closely relates. (7) If the agency to which a request is so deemed to have been made, or by which a decision upon a request is so deemed to have been made, was not itself in existence at the time when the request or decision was deemed so to have been made, then, for the purposes only of dealing with that request or decision under this Act, that agency shall be deemed to have been in existence at that time. (8) For the purposes of this Act, where regulation s for the purposes of this subsection declare that an application fee is applicable in respect of an application under subsection 15(1) or 54(1), there shall be taken to be an application fee in respect of the application. (9) For the purposes of the application of the definition of responsible Minister in subsection (1) of this Act (other than sections 8 and 93), the reference in that definition to the Minister administering a Department is a reference to the Minister to whom t he Department is responsible in respect of the matter in respect of which this Act is being applied. 21 Deferment of access (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 i s required by law—until the expiration of the period within which the document is required to be published; (b) if the document concerned has been prepared fo r presentation to Parliament or for the purpose of being made avai lable to a particular person or body or with the intention tha t it should be so made available—until the expiration of a reas onable period after its preparation for it to be so presen ted or made available; (c) if the premature release of the document conce rned would be contrary to the public interest—until the occurrenc e of any event after which or the expiration of any period o f 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 conc erned is of such general public interest that the Parliament sh ould be informed of the contents of the document before the document is otherwise made public—until the expirat ion of 5 sitting days of either House of the Parliament. (2) Where the provision of access to a document is deferred in accordance with subsection (1), the agency or Minis ter shall, in informing the applicant of the reasons for the deci sion, indicate, as far as practicable, the period for which the deferm ent will operate. (3) Subsection 55(1) does not apply in relation to a deferment under paragraph (1)(d) of this section. 47 "Certain documents arising out of companies and securities legislation (1) A document is an exempt document if it is, or is a copy of or of a part of, or contains an extract from:(...) c) a document furnished to the National Companies and Securities Commission by a State or an authority of a State and relating solely to the functions of the Commiss ion in relation to the law of a State or the laws of 2 or more States;(...)" Art 4 excludes Cabinet notebooks entirely - this is overly broad. S 21 deferments are overly broad - with no time limit, and fuzzy justification requirements. 47(c) - deliberative process documents - overly broad (also not harm tested).
30 A harm test applies to all exceptions, so that it is only where disclosure poses a risk of actual harm to a protected interest that it may be refused. Score 4 points and then deduct 1 point for each exception which is not subject to the harm test 4 NO 34 Cabinet documents (1) A document is an exempt document if it is: (a) a document that has been submitted to the Cabi net for its consideration or is proposed by a Minister to be so submitted, being a document that was brought into existence fo r the purpose of submission for consideration by the Cabi net; (b) an official record of the Cabinet; (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 invol ve the disclosure of any deliberation or decision of the C abinet, other than a document by which a decision of the Ca binet was officially published. (1A) This section does not apply to a document (in this subsection referred to as a relevant document ) that is referred to in paragraph (1)(a), or that is referred to in paragra ph (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 ext ent that the relevant document contains purely factual material unless: (a) the disclosure under this Act of that document would involve the disclosure of any deliberation or decision of t he Cabinet; and (b) the fact of that deliberation or decision has not been officially published. (6) A reference in this section to the Cabinet sha ll be read as including a reference to a committee of the Cabinet. 47 "Certain documents arising out of companies and securities legislation (1) 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 b y an agency or Minister from, a State or an authority of a State;(...) 34 - Cabinet docs. 47(1)(a) - trade secrets. 47(g) - 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.
31 There is a mandatory public interest override so that information must be disclosed where this is in the overall public interest, even if this may harm a protected interest. There are ‘hard’ overrides (which apply absolutely), for example for information about human rights, corruption or crimes against humanity.Consider whether the override is subject to overarching limitations, whether it applies to only some exceptions, and whether it is mandatory.4 Partially This only applies to conditionally exempt documents.
32 Information must be released as soon as an exception ceases to apply (for example, for after a contract tender process decision has been taken). The law contains a clause stating that exceptions to protect public interests do not apply to information which is over 20 years old.Score 1 point for each2 NO This only applies to conditionally exempt documents.
33 Clear and appropriate procedures are in place for consulting with third parties who provided information which is the subject of a request on a confidential basis. Public authorities shall take into account any objections by third parties when considering requests for information, but third parties do not have veto power over the release of information.Score: 1 point for consultation, 1 further point if original time frames must be respected and the law allows for expedited appeals.2 YES 27 Procedure on request in respect of documents re lating to business affairs etc. (1) Where a request is received by an agency or Mi nister in respect of a document containing information concerning: (a) a person’s business or professional affairs; o r (b) the business, commercial or financial affairs of an organisation or undertaking; a decision to grant access under this Act to the do cument or an edited copy of the document, so far as it contains that information, must not be made unless, where it is reasonably pra cticable to do so having regard to all the circumstances (includin g the application of subsections 15(5) and (6)): (c) the agency or Minister has given to the person or organisation or the proprietor of the undertaking a reasonable opportunity of making submissions in support of a c ontention that the document or edited copy is an exempt docum ent 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 documen t or edited copy, so far as it contains the information referre d to in subsection (1), is not an exempt document under sec tion 43: (a) the agency or Minister shall cause notice in w riting of the decision to be given to the person who made the sub missions, as well as to the person who made the request; and (b) access shall not be given to the document or e dited copy, so far as it contains the information referred to in s ubsection (1), unless: (i) the time for an application to the Tribunal by that person in accordance with section 59 has expired and such an application (other than an application that has subsequently been withdrawn) has not been made; or (ia) such an application has been made but the Tri bunal has dismissed the application under section 42A of the Administrative Appeals Tribunal Act 1975 ; or (ii) such an application has been made and the Tri bunal has confirmed the decision. (3) Nothing in paragraph (2)(b) prevents access be ing given to a document of a kind referred to in that paragraph if a further request has been made for access to the document and there is no failure to comply with this section in dealing with the furthe r request. 27A Procedure on request in respect of documents c ontaining personal information (1AA) This section applies if: (a) a request is received by an agency or Minister in respect of a document containing personal information about a pe rson (including a person who has died); and (b) it appears to: (i) the officer or Minister dealing with the reque st; or (ii) a person (the reviewer ) reviewing under section 54 a decision refusing the request; that the person referred to in paragraph (a) or, if that person has died, the legal personal representative of that person, might reasonably wish to contend that the document, so far as it contains that information, is an exempt docum ent under section 41. (1) A decision to grant access under this Act to t he document or an edited copy of the document, so far as it contains that information, must not be made unless, where it is reasonably pra cticable to do so having regard to all the circumstances (includin g the application of subsections 15(5) and (6)): (a) the agency or Minister has given to the person or the legal personal representative of the person, as the case may be, a reasonable opportunity of making submissions in sup port of a contention that the document or edited copy, so far as it contains that information, is an exempt document un der section 41; and (b) the person making the decision has had regard to any submissions so made. (1A) In determining, for the purposes of subsectio n (1AA), whether a person might reasonably wish to contend that a docu ment, so far as it contains personal information, is an exempt docu ment under section 41, the officer, Minister or reviewer, as t he case requires, must have regard to the following matters: a) the extent to which the personal information i s well known; (b) whether the person to whom the personal inform ation relates is known to be associated with the matters dealt wi th in the document; (c) the availability of the personal information f rom publicly accessible sources; (d) such other matters as the officer, Minister or reviewer, as the case requires, considers relevant. (2) Where, after any submissions have been made in accordance with subsection (1), a decision is made that the documen t or edited copy, so far as it contains the information referre d to in paragraph (1)(a), is not an exempt document under s ection 41: (a) the agency or Minister shall cause notice in w riting of the decision to be given to the person who made the sub missions, as well as to the person who made the request; and (b) access shall not be given to the document or e dited copy, so far as it contains the information referred to in paragraph (1)(a), unless: (i) the time for an application to the Tribunal in accordance with section 59A by the person who made the submissions has expired and such an application (ot her than an application that has subsequently been withdrawn) has not been made; or (ia) such an application has been made but the Tri bunal has dismissed the application under section 42A of the Administrative Appeals Tribunal Act 1975 ; or (ii) such an application has been made and the Tri bunal has confirmed the decision. (3) Nothing in paragraph (2)(b) prevents access be ing given to a document of a kind referred to in that paragraph if a further request has been made for access to the document and there is no failure to comply with this section in dealing with the furthe r request.
34 There is a severability clause so that where only part of a record is covered by an exception the remainder must be disclosed. Score 1 point if yes but sometimes can be refused (eg: if deletions render meaningless the document) and 2 points if partial access must always be granted2 YES 22 Deletion of exempt matter or irrelevant materia l (1) Where: (a) an agency or Minister decides: (i) not to grant a request for access to a documen t on the ground that it is an exempt document; or (ii) that to grant a request for access to a docum ent would disclose information that would reasonably be regar ded as irrelevant to that request; and (b) it is possible for the agency or Minister to m ake a copy of the document with such deletions that the copy: (i) would not be an exempt document; and (ii) would not disclose such information; and (c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involve d in deciding on and making those deletions and the reso urces 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 Min ister with the applicant, that the applicant would not wish to hav e access to such a copy, make, and grant access to, such a copy. (2) Where access is granted to a copy of a documen t in accordance with subsection (1): (a) the applicant must be informed: (i) that it is such a copy; and (ii) of the ground for the deletions; and (iii) if any matter deleted is exempt matter becau se of a provision of this Act—that the matter deleted is ex empt matter because of that provision; and (b) section 26 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 furnis h to him or her a notice in writing in accordance with that sec tion.
35 When refusing to provide access to information, public authorities must a) state the exact legal grounds and reason(s) for the refusal and b) inform the applicant of the relevant appeals procedures.Score Y/N: 1 point for a and 1 point for b2 YES 26 Reasons and other particulars of decisions to b e given (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 docum ent, the decision-maker shall cause the applicant to be give n notice in writing of the decision, and the notice shall: (a) state the findings on any material questions o f fact, referring to the material on which those findings were based, and state the reasons for the decision; (b) where the decision relates to a document of an agency, state the name and designation of the person giving the d ecision; and (c) give to the applicant appropriate information concerning: (i) his or her rights with respect to review of th e 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 the rights referred to in subparagraphs (i) and (ii); including (where applicable) particulars of the m anner in which an application for review under section 54 ma y be made. (1A) Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a decision referred to in subsect ion (1). (2) A notice under this section is not required to contain any matter that is of such a nature that its inclusion in a do cument of an agency would cause that document to be an exempt do cument.


Appeals

Indicator

Description

Scoring instructions
MAX score
Findings

Points

Article

Comments
36 The law offers an internal appeal which is simple, free of charge and completed within clear timelines (20 working days or less).Score 2 points if the internal appeal fulfills these criteria, 1 point if an appeal is offered that does not fulfill this criteria, 0 for no internal appeals.2 Partially All of Part VI 54 "1)Subject to subsection (1A), where a decision h as been made, in relation to a request to an agency, otherwise than by the responsible Minister or principal officer of the agency, being: <...> the applicant may, by application in writing to the agency accompanied by any application fee in respect of the application, request a review of the decision.<...> (1A) The application must be made: (a) in the case of a decision of a kind mentioned in paragraphs (1)(a), (c), (d), (e), (g) and (h)—within 30 days, or such further period as the agency allows, after the day on which the decision is notified to the applicant; <...>". Timeline is 30 days.
37 Requesters have the right to lodge an (external) appeal with an independent administrative oversight body (e.g. an information commission or ombudsman). 1 for partial, 2 for yes2 YES 54 Internal review (1) Subject to subsection (1A), where a decision h as been made, in relation to a request to an agency, otherwise than by the responsible Minister or principal officer of the ag ency, being: (a) a decision refusing to grant access to a docum ent in accordance with a request; or (b) a decision granting access to a document but n ot granting, in accordance with the request, access to all document s to which the request relates; or (ba) a decision purporting to grant, in accordance with a request, access to all documents to which the request relate s, but not actually granting that access; or (c) a decision to defer the provision of access to a document; or (d) a decision under section 29 relating to imposi tion of a charge or the amount of a charge; or (e) a decision under section 30A relating to remis sion of an application fee; or (f) a decision to grant access to a document only to a qualified person under subsection 41(3); or (g) a decision refusing to amend a record of perso nal information in accordance with an application made under sectio n 48; or h) a decision refusing to annotate a record of pe rsonal information in accordance with an application made under section 48; the applicant may, by application in writing to the agency accompanied by any application fee in respect of th e application, request a review of the decision. (1A) The application must be made: (a) in the case of a decision of a kind mentioned in paragraphs (1)(a), (c), (d), (e), (g) and (h)—withi n 30 days, or such further period as the agency allows, after the day on which the decision is notified to the applicant; or (b) in the case of a decision of a kind mentioned in paragraph (1)(b), (ba) or (f): (i) within 30 days, or such further period as the agency allows, after the day on which the decision is noti fied to the applicant; or (ii) within 15 days after the day on which the acc ess referred to in that paragraph was granted; whichever period is longer. (1B) A decision by an agency to allow a further pe riod for making an application may be made whether or not the time for making such an application has already expired. (1C) Subject to subsection (1F), where: (a) arrangements of the kind mentioned in section 26A have been entered into between the Commonwealth and a St ate; and (b) an agency has decided, in relation to a reques t to the agency for access to a document that relates to the State in a way mentioned in paragraph 26A(1)(a), that the document , or an edited copy of the document, is not an exempt docum ent under section 33A; and (c) the decision was not made by the responsible M inister or principal officer of the agency; the State may, by application in writing to the age ncy, request a review of the decision. (1D) Subject to subsection (1F), where: (a) on a request of a kind mentioned in subsection 27(1) being made to an agency, the agency has decided that the document to which the request relates, or an edited copy of the document, being a document or edited copy that cont ains information concerning a person, organisation or pr oprietor of an undertaking, is not an exempt document under section 43 by virtue of containing that information ; and (b) the decision was not made by the responsible M inister or principal officer of the agency; the person, organisation or proprietor may, by appl ication in writing to the agency, request a review of the deci sion. (1E) Subject to subsection (1F), where: (a) on a request of a kind mentioned in subsection 27A(1AA) being made to an agency, the agency has decided tha t the document to which the request relates, or an edited copy of the document, being a document or edited copy that contains personal information about a person, is not an exem pt document under section 41 by virtue of containing t hat information; and (b) the decision was not made by the responsible M inister or principal officer of the agency; the person may, by application in writing to the ag ency, request a review of the decision. (1F) An application under subsection (1C), (1D) or (1E) must be made within 30 days, or such further period as the agenc y allows, after the day on which notice of the decision was given t o the applicant. (1G) An agency’s power under subsection (1A) or (1 F) to allow a further period for making an application may be exe rcised by an officer of the agency acting within the scope of au thority exercisable by him or her in accordance with the ar rangements approved by the responsible Minister or principal o fficer of the agency. (2) Subject to subsection (3), where an applicatio n for a review of a decision is made to the agency under this section, it must as soon as practicable arrange for a person (not being the person who made the decision) to conduct such reviews to review the decision and make a fresh decision. (3) Subsections (1), (1C), (1D) and (1E) do not ap ply in relation to: (a) a decision made on a review under this section ; or (b) a decision in relation to the provision of acc ess to a document upon a request that is, under subsection 56(1) or ( 3), to be deemed to have been given. (4) The provisions of section 26 extend to a decis ion made under this section. 58 Powers of Tribunal (1) Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to revie w any decision that has been made by an agency or Minister in resp ect 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 Mini ster. (2) Where, in proceedings under this Act, it is es tablished that a document is an exempt document, the Tribunal does n ot have power to decide that access to the document, so far as it contains exempt matter, is to be granted. (6) The powers of the Tribunal under this section extend to matters relating to charges payable under this Act in relat ion to a request. (7) Where: (a) application is or has been made to the Adminis trative Appeals Tribunal for review of a decision refusing to grant a person access to a document in accordance with a re quest; and (b) the agency to which or the Minister to whom th e 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 (in whatever terms expressed) to the effe ct that access to the document is being refused for th e reason that, by virtue of the operation of subsecti on 12(2) or of that subsection as modified by regulati ons in pursuance of subsection 12(3), the applicant is not entitled to access to that document; or (ii) informs or has informed the Tribunal, either before or in the course of the proceeding for the review of the decision, that the agency or the Minister, as the c ase requires, does not intend, or does not any longer i ntend, to refuse access to the document for the reason ref erred to in subparagraph (i); then, for the purposes of the review by the Tribuna l of that decision, this Act has effect as if subsection 12(2 ), or that subsection as so modified, as the case requires, ha d not been enacted. Art 54 - appeal to IC. Art 58 on allows for a further appeal to a Tribunal.
38 The member(s) of the oversight body are appointed in a manner that is protected against political interference and have security of tenure so they are protected against arbitrary dismissal (procedurally/substantively) once appointed.Score: 1 point for appointment procedure, 1 point for security of tenure2 NO OAIC Act Art 14 - appointed by the GG. Art 20 allows the GG to dismiss the IC, without consultation with others.
39 The oversight body reports to and has its budget approved by the parliament, or other effective mechanisms are in place to protect its financial independence.Score 1 point for reports to parliament, 1 point for budget approved by parliament2 Partially OAIC Act Art 17 allows for financial independence of IC. But Art 30 of OAIC says that the IC reports to the minister.
40 There are prohibitions on individuals with strong political connections from being appointed to this body and requirements of professional expertise.Score 1 point for not politically connected, 1 point for professional expertise2 NO 14(3) of OAIC Act has a requirement for expertise for the Freedom of Info commissioner, but no such requirement for the IC.
41 The independent oversight body has the necessary mandate and power to perform its functions, including to review classified documents and inspect the premises of public bodies.Score 1 point for reviewing classified documents, 1 point for inspection powers2 YES 55R Information gathering powers—obliging producti on of information and documents Scope (1) This section applies if the Information Commis sioner has reason to believe that a person has information, or a documen t, relevant to an IC review. (2) This section applies subject to sections 55T ( exempt documents generally) and 55U (particular exempt documents). Notice to produce (3) The Information Commissioner may, by written n otice, require a person to, for the purposes of an IC review: (a) give the Information Commissioner information of a kind specified by the notice; or (b) produce to the Information Commissioner a docu ment specified by the notice. (4) The notice must: (a) be in writing; and (b) specify the place at which the person must com ply with the notice; and (c) state that the person must comply with the not ice: (i) within a specified period that is not less tha n 14 days after the day on which the person is given the noti ce; or (ii) at a specified time that is not less than 14 days after the time at which the person is given the notice. 55W Information gathering powers—obliging persons to appear Notice to appear (1) The Information Commissioner may, by written n otice, require a person to appear before the Information Commissione r to answer questions for the purposes of an IC review. (2) The notice must: (a) be in writing; and (b) state that the person must comply with the not ice at a specified time that is not less than 14 days after the time at which the person is given the notice; and (c) specify the place at which the person must com ply with the notice. Offence for failure to comply (3) A person commits an offence if: (a) the person is subject to a requirement specifi ed in a notice under subsection (1); and (b) the person engages in conduct; and (c) the person’s conduct breaches the requirement. Penalty for a contravention of this subsection: 6 m onths imprisonment. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. 77 Information Commissioner investigations—general power to enter premises (1) If a consenting person consents to entry under paragraph (2)(a), an authorised person may, at any reasonable time of da y arranged with the consenting person: (a) enter and remain at the place; or (b) carry on the investigation at that place; or (c) inspect any documents relevant to the investig ation kept at the place. Note: For consenting person , see subsection (3). Authority to enter premises (2) The authorised person may enter a place that: (a) is occupied by an agency; or (b) is occupied by a contracted service provider a nd used by the contracted service provider predominantly for the p urposes of a Commonwealth contract. (3) The authorised person may enter a place only i f: (a) consent to the entry has been given by the per son (the consenting person ) who is: (i) in the case of an agency—the principal officer of the agency; or (ii) in the case of a contracted service provider— the person in charge (however described) of the contracted ser vice provider; and b) before giving the consent, the authorised pers on informed the consenting person that he or she may refuse consent . (4) The authorised person must leave the premises if the consenting person asks the authorised person to do so. (5) This section is subject to section 78. Who is an authorised person ? (6) An authorised person is: (a) an information officer (within the meaning of the Australian Information Commissioner Act 2010 ); or (b) an APS employee who: (i) is performing the duties of an Executive Level 2, or equivalent, position (or a higher position) in the Office of the Australian Information Commissioner; and (ii) is authorised by the Information Commissioner for the purposes of this section. 55R gives them the power to review classified docs. 55W power to compel evidence. 77 gives them power to inspect premises.
42 The decisions of the independent oversight body are binding. Score N=0, Y=2 points2 YES 55K Decision on IC review—decision of Information Commissioner "(1) After undertaking an IC review, the Information Commissioner must make a decision in writing: (a) affirming the IC reviewable decision; or (b) varying the IC reviewable decision; or (c) setting aside the IC reviewable decision and making a decision in substitution for that decision.<...>" 55N Decision on IC review—obligation to comply with decision "A principal officer of an agency or a Minister mu st comply with a decision of the Information Commissioner under sect ion 55K on an IC review." Allows the body to overturn decisions made by the agencies.
43 In deciding an appeal, the independent oversight body has the power to order appropriate remedies for the requester, including the declassification of information. 1 for partial, 2 for fully2 YES 55K Decision on IC review—decision of Information Commissioner (1) After undertaking an IC review, the Informatio n Commissioner must make a decision in writing: (a) affirming the IC reviewable decision; or (b) varying the IC reviewable decision; or (c) setting aside the IC reviewable decision and m aking a decision in substitution for that decision. (2) For the purposes of implementing a decision on an IC review, the Information Commissioner may perform the functions, and exercise the powers, of the person who made the IC reviewable decision. (3) A decision of the Information Commissioner on an IC review has the same effect as a decision of the agency or Mini ster who made the IC reviewable decision. Content of the decision (4) A decision on an IC review must include the fo llowing: (a) a statement of reasons for the decision; (b) a statement of the rights of the review partie s to apply to the Tribunal for review of the decision under section 5 7A. (5) However, a decision on an IC review must not i nclude: (a) information of the kind referred to in subsect ion 25(1); or (b) exempt matter. Note: Subsection 25(1) deals with information about the existence or otherwise of certain document. Providing copy of decision (6) The Information Commissioner must give a copy of a decision on an IC review to each review party. Copy of decision prima facie evidence (7) A document is prima facie evidence of a decisi on on an IC review if: (a) the document purports to be a copy of the deci sion; and (b) the document purports to be certified by, or o n behalf of, the Information Commissioner to be a true copy of the d ecision. Publication requirement (8) The Information Commissioner must publish a de cision on an IC review to members of the public generally. 55N Decision on IC review—obligation to comply wit h decision A principal officer of an agency or a Minister mu st comply with a decision of the Information Commissioner under sect ion 55K on an IC review. 55K and 55N
44 Requesters have the right to lodge a judicial appeal.1 for partially, 2 for fully.2 YES 56 Application to Tribunal where decision delayed (1) Subject to this section, where: (a) a request has been made to an agency or Minist er in accordance with section 15; and (b) the period of 30 days, in relation to the requ est, mentioned in paragraph 15(5)(b), or that period as extended unde r subsection 15(6), has expired since the day on whic h the request was received by or on behalf of the agency or Minister; and (c) notice of a decision on the request has not be en 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 th e Tribunal under section 55, be deemed to have made, on the la st day of that period, a decision refusing to grant access to the document. (1A) Subject to this section, where: (a) an application has been made to an agency or M inister under section 48; and b) a period of 30 days, in relation to the applic ation, mentioned in section 51D has expired since the day on which t he application was received by or on behalf of the age ncy or Minister; and (c) notice of a decision on the request has not be en received by the applicant; the principal officer of the agency or the Minister is, for the purpose of enabling an application to be made to th e Tribunal under section 55, taken to have made, on the last d ay of that period, a decision refusing to amend or annotate the record of personal information to which the application relates. (2) Where a complaint is made to the Ombudsman und er the Ombudsman Act 1976 concerning failure to make and notify to the applicant a decision on a request (whether the comp laint was made before or after the expiration of the period referr ed to in subsection (1) or (1A), as the case may be), an app lication to the Tribunal under section 55 of this Act by virtue of this section shall not be made before the Ombudsman has informed the a pplicant of the result of the complaint in accordance with sect ion 12 of the Ombudsman Act 1976 . (3) Where such a complaint is made before the expi ration of the period referred to in subsection (1) or (1A), as the case may be, the Ombudsman, after having investigated the complaint, may, if he or she is of the opinion that there has been unreasona ble delay by an agency in connection with the request, grant to the applicant a certificate certifying that he or she is of that op inion, and, if the Ombudsman does so, the principal officer of the age ncy or the Minister, as the case requires, shall, for the purp ose of enabling application to be made to the Tribunal under sectio n 55, be deemed to have made, on the day on which the certificate i s granted, a decision refusing to grant access to the document. (4) The Ombudsman shall not grant a certificate un der subsection (3) where the request to which the complaint relates wa s made to, or has been referred to, a Minister and is awaiting de cision by him or her. (5) Where, after an application has been made to t he Tribunal by virtue of this section but before the Tribunal has finally dealt with the application, a decision is given, other than a deci sion: ) to grant, without deferment, access to the doc ument in accordance with the request; or (b) to amend or annotate the record of personal in formation to which the application relates; the Tribunal may treat the proceedings as extending to a review of that decision in accordance with this Part. (6) Before dealing further with an application mad e by virtue of this section, the Tribunal may, on the application of th e agency or Minister concerned, allow further time to the agenc y or Minister to deal with the request
45 Appeals to the oversight body (where applicable, or to the judiciary if no such body exists) are free of charge and do not require legal assistance.1 for free, 1 for no lawyer required. 2 YES " http://www.oaic.gov.au/foi-portal/about_foi.html#reforms - internal review free http://www.oaic.gov.au/publications/FOI_fact_sheet12_your_review_rights.html - external (FOI Comish) review free"
46 The grounds for appeal to the oversight body (where applicable, or to the judiciary if no such body exists) are broad (including not only refusals to provide information but also refusals to provide information in the form requested, administrative silence and other breach of timelines, charging excessive fees, etc.).Score 1 point for appealing refusals, additional points for appealing other violations.4 YES 54L IC reviewable decisions—access refusal decisio ns (1) An application may be made to the Information Commissioner for a review of a decision covered by subsection (2). (2) This subsection covers the following decisions : (a) an access refusal decision; (b) a decision made by an agency on internal revie w of an access refusal decision (see section 54C); (c) a decision refusing to allow a further period for making an application for internal review of an access refusa l decision (under section 54B). Note 1: An application for the review of an access refusal decision made for the purposes of paragraph (a) may be made regardles s of whether the decision was the subject of internal review. Note 2: If no decision is made on internal review w ithin 30 days, a decision to affirm the original access refusal decision is take n to have been made (see section 54D). (3) The IC review application may be made by, or o n behalf of, the person who made the request to which the decision r elates. 54M IC reviewable decisions—access grant decisions (1) An application may be made to the Information Commissioner for a review of a decision covered by subsection (2). (2) This subsection covers the following decisions : (a) an access grant decision; (b) a decision made by an agency on internal revie w of an access grant decision (see section 54C). Note: If no decision is made on internal review wit hin 30 days, a decision to affirm the original access grant decision is taken to have been made (see section 54D). (3) The IC review application may be made by, or o n behalf of, the following: a) in any case—an affected third party for the do cument in relation to which the decision covered by subsectio n (2) was made; (b) in a case covered by paragraph (2)(b)—the pers on who made the request to which the decision relates. Note: For affected third party , see section 53C. 53A What is an access refusal decision ? An access refusal decision is any of the following decisions: (a) a decision refusing to give access to a docume nt in accordance with a request; (b) a decision giving access to a document but not giving, in accordance with the request, access to all document s to which the request relates; (c) a decision purporting to give, in accordance w ith a request, access to all documents to which the request relate s, but not actually giving that access; (d) a decision to defer the provision of access to a document (other than a document covered by paragraph 21(1)(d ) (Parliament should be informed of contents)); (e) a decision under section 29 relating to imposi tion of a charge or the amount of a charge; (f) a decision to give access to a document to a q ualified person under subsection 47F(5); (g) a decision refusing to amend a record of perso nal information in accordance with an application made under sectio n 48; (h) a decision refusing to annotate a record of pe rsonal information in accordance with an application made under section 48. Note: If a decision is not made on a request under section 15 within the time required by that section, a decision is taken to ha ve been made to refuse to give access to a document in accordance w ith the request (see section 15AC). 70 Information Commissioner investigations—making complaints (1) A person (the complainant ) may complain to the Information Commissioner about an action taken by an agency in the performance of functions, or the exercise of powers , under this Act. (2) A complaint must: (a) be in writing; and (b) identify the agency (also the respondent agency ) in respect of which the complaint is made. (3) The Office of the Australian Information Commi ssioner must provide appropriate assistance to a person who: (a) wishes to make a complaint; and (b) requires assistance to formulate the complaint . Art 54L and M limit review to"access refusal decisions". This is defined in 53A as including refusals, partial refusals, administrative silence (through breach of timelines), or decisions to levy charges. Art 70 allows separate complaints for administrative mismanagement.
47 Clear procedures, including timelines, are in place for dealing with external appeals (oversight/judicial).Score 1 point for clear procedures, 1 point for timelines. 2 Partially 55 Applications to Administrative Appeals Tribunal (1) Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of: (a) a decision refusing to grant access to a docum ent in accordance with a request; or (aa) a decision granting access to a document but not granting, in accordance with a request, access to all documents to which the request relates; or (ab) a decision purporting to grant, in accordance with a request, access to all documents to which the request relate s, but not actually granting that access; or (b) a decision to defer the provision of access to a document; or (c) a decision refusing to allow a further period for making an application under subsection 54(1) for a review of a decision; or (d) a decision under section 29 relating to imposi tion of a charge or the amount of a charge; or (e) a decision under section 30A relating to remis sion of an application fee; or (f) a decision to grant access to a document only to a qualified person under subsection 41(3); or (g) a decision refusing to amend a record of perso nal information in accordance with an application made under sectio n 48; or (h) a decision refusing to annotate a record of pe rsonal information in accordance with an application made under section 48. (2) Subject to subsection (3), where, in relation to a decision referred to in subsection (1), a person is or has been entit led to apply under section 54 for a review of the decision, that perso n is not entitled to make an application under subsection (1) in relatio n to that decision, but may make such an application in respe ct of the decision made on such a 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 54 for a review of the decision; (b) a period of 30 days has elapsed since the day on which that application was received by or on behalf of the age ncy concerned; and (c) he or she has not been informed of the result of the review; and such an application to the Tribunal may be trea ted by the Tribunal as having been made within the time allowe d by subsection (4) if it appears to the Tribunal that t here was no unreasonable delay in making the application to the Tribunal. (4) Notwithstanding section 29 of the Administrative Appeals Tribunal Act 1975 , the period within which (subject to any extension granted by the Tribunal) an application under subse ction (1) of this section is to be made in respect of a decision is: (a) except where paragraph (b) or (c) applies—the period commencing on the day on which notice of the decisi on was given to the applicant in accordance with section 2 6 and ending on the sixtieth day after that day; (b) where the decision is a decision that is to be deemed by subsection 56(1) or (3) to have been made—the perio d commencing on the day on which the decision is to b e deemed to have been made and ending on the sixtieth day after that day; or (c) where subsection 57(3) is applicable—the perio d commencing on the day on which the Ombudsman has informed the applicant as referred to in that subse ction and ending on the sixtieth day after that day. (5) The Tribunal’s power to make a decision on a r eview of a decision refusing to grant access to a document on a ground mentioned in section 24A includes a power to require the agency or Minister concerned to conduct further searches for the docum ent. (5A) The Tribunal’s power to make a decision on a review of a decision of a kind mentioned in paragraph (1)(ab) includes a power to require the agency or Minister concerned to conduct further searches for the document. (6) The Tribunal must not, on a review of a decisi on of a kind mentioned in paragraph (1)(g), make a decision that requires, or has the effect of requiring, an amendment to be mad e to a record if it is satisfied that: (a) the record is a record of a decision, under an enactment, by a court, tribunal, authority or person; or (b) the decision whether to amend the document inv olves a determination of a question that the applicant conc erned is, or has been, entitled to have determined by a court or tribunal (other than the Tribunal); or (c) the amendment relates to a record of an opinio n to which neither of the following applies; (i) the opinion was based on a mistake of fact; (ii) the author of the opinion was biased, unquali fied to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion Very clear procedures are in place in s 55, but there's no specific timeline for response.
48 In the appeal process (oversight/judicial/) the government bears the burden of demonstrating that it did not operate in breach of the rules.Score Y/N and award 2 points for yes. 2 YES 55D Procedure in IC review—onus (1) Subject to subsection (2), in an IC review in relation to a request or an application under section 48, the agency or Mini ster concerned has the onus of establishing that: (a) a decision given in respect of the request or application is justified; or (b) the Information Commissioner should give a dec ision adverse to the IC review applicant. (2) In an IC review of a decision for which an IC review application is made under section 54M (access grant decisions), th e affected third party for the document in relation to which the dec ision was made has the onus of establishing that: (a) a decision refusing the request is justified; or (b) the Information Commissioner should give a dec ision adverse to the person who made the request. Note: For affected third party , see section 53C
49 The external appellate body has the power to impose appropriate structural measures on the public authority (e.g. to conduct more training or to engage in better record management)1 for partial, 2 for fully. 2 YES 88 Information Commissioner investigations—what ar e the investigation recommendations ? The investigation recommendations , in relation to the investigation, are the formal recommendations to th e respondent agency that the Information Commissioner believes t hat the respondent agency ought to implement. 89 Information Commissioner investigations—failure to implement investigation recommendation Scope (1) This section applies if: (a) the Information Commissioner completes an inve stigation; and (b) the Information Commissioner gives an agency a notice under section 86; and (c) the Information Commissioner is not satisfied that the agency has taken action that is adequate and appropriate i n the circumstances to implement the investigation recommendations for the investigation. Giving implementation notices (2) The Information Commissioner may, by notice in writing (an implementation notice ), require the respondent agency to: (a) give to the Information Commissioner particula rs of any action that the agency proposes to take to implemen t the investigation recommendations for the investigation ; and (b) give the particulars within the time specified in the notice. (3) The respondent agency must comply with the imp lementation notice.


Sanctions & Proteccions

Indicator

Description

Scoring instructions
MAX score
Findings

Points

Article

Comments
50 Sanctions may be imposed on those who wilfully act to undermine the right to information, including through the unauthorised destruction of information.Score 1 point for sanctions for underming right, 1 point for destruction of documents 2 NO No mentioned
51 There is a system for redressing the problem of public authorities which systematically fail to disclose information or underperform (either through imposing sanctions on them or requiring remedial actions of them).Score 1 point for either remedial action or sanctions, 2 points for both 2 NO No mentioned
52 The independent oversight body and its staff are granted legal immunity for acts undertaken in good faith in the exercise or performance of any power, duty or function under the RTI Law. Others are granted similar immunity for the good faith release of information pursuant to the RTI Law.Score 1 for oversight body, 1 for immunity for others2 YES 90 Protection against civil liability—general (1) 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: (a) publishes a document in good faith, in the bel ief that the publication is required or permitted under Part II (information publication scheme) or section 11C (pu blication of information in accessed documents); or (b) gives access to a document in good faith, in t he belief that the access is required or permitted to be given in resp onse to a request; or (c) publishes, or gives access to, a document in g ood faith, in the belief that the publication or access is required o r permitted otherwise than under this Act (whether or not under an express legislative power). (2) No action for defamation, or breach of confide nce, in respect of the publication of a document covered by subsection (3) , lies against a person (including the author of the document) becau se the person supplied the document to a Minister or an agency. (3) The publication of a document is covered by th is subsection if: (a) it is published as mentioned in paragraph (1)( a) or (c); or (b) its publication is involved in, or results fro m, the giving of access to the document (or another document) as men tioned in paragraph (1)(b) or (c). 51 Subsection 91(1) Repeal the subsection. Note: The heading to section 91 is replaced by the heading “ Protection against civil liability—particular situations ”. 52 Subsection 91(1A) Omit “Subsection (1)”, substitute “Section 90”. 53 Paragraph 91(1C)(a) Omit “26A(1)”, substitute “26A(2)”. 54 Paragraph 91(1C)(b) Omit “27(1)”, substitute “27(4)”. 55 Paragraph 91(1C)(c) Omit “27A(1)”, substitute “27A(3)” 85 Information Commissioner investigations—protect ion from liability (1) This section applies if a person does any of t he following in good faith for the purposes of an investigation: (a) gives information; (b) produces a document; (c) answers a question. (2) If this section applies, then: a) civil proceedings do not lie against a person because the person does any of the matters mentioned in paragraphs (1)(a) to (c); and (b) the person is not liable for a penalty under a provision of any law because the person does any of those matters. (3) This section applies whether or not the person is required to do a thing mentioned in subsection (1) in accordance wit h this Division. Art 90 and 91, as well as 85 for the IC.
53 There are legal protections against imposing sanctions on those who, in good faith, release information which discloses wrongdoing (i.e. whistleblowers).Score 2 for strong protections, 1 for moderate protections2 YES No mentioned.


Promotional measures

Indicator

Description

Scoring instructions
MAX score
Findings

Points

Article

Comments
54 Public authorities are required to appoint dedicated officials (information officers) or units with a responsibility for ensuring that they comply with their information disclosure obligations.Score Y/N, Y=2 points2 YES Each agency must appoint an information officer - http://www.humanservices.gov.au/corporate/freedom-of-information/index
55 A central body, such as an information commission(er) or government department, is given overall responsibility for promoting the right to information. Score Y/N, Y=2 points2 YES OAIC Act Art 4
56 Public awareness-raising efforts (e.g. producing a guide for the public or introducing RTI awareness into schools) are required to be undertaken by law. Score Y/N, Y=2 points2 NO No - the publication requirements in Art 7A only require that the information officer's contact information be published. Our expert tells us that, in practice, many agencies go further than this and publish guides, but because it's not a part of the legal framework it would be inconsistent with the general scoring methodology to credit them here.
57 A system is in place whereby minimum standards regarding the management of records are set and applied. Score Y/N, Y=2 points2 NO No mentioned.
58 Public authorities are required to create and update lists or registers of the documents in their possession, and to make these public. Score Y/N, Y=2 points2 NO Not mentioned.
59 Training programs for officials are required Score Y/N, Y=2 points2 YES OAIC Act Art 8(d)
60 Public authorities are required to report annually on the actions they have taken to implement their disclosure obligations. This includes statistics on requests received and how they were dealt with. Score Y/N, Y=2 points2 YES http://www.oaic.gov.au/publications/agency_resources.html#foi_stats
61 A central body, such as an information commission(er) or government department, has an obligation to present a consolidated report to the legislature on implementation of the law. Score Y/N, Y=2 points2 YES 93B Review of operation of Act (1) The Minister must cause a review of the operat ion of this Act to be undertaken. (2) The review must: (a) start 2 years after the commencement of this s ection; and (b) be completed within 6 months. Note: This section commences immediately after the commencement of section 3 of the Australian Information Commissioner Act 2010 . (3) The Minister must cause a written report about the review to be prepared. (4) The Minister must cause a copy of the report t o be laid before each House of the Parliament within 15 sitting days of t hat House after the Minister receives the report. 93B and OAIC Act Art 30