LAW 1504 Lecture Notes - Lecture 7: Open Government
23 May 2018
School
Department
Course
Professor
Freedom of information
purpose - Cth
s 3- open government- promotion of access to information
s 3(1)(a)- requires agencies to publish info (b)- provides right of access to
documents
s 3(2)- promote representative democracy.
(a) increased participation. Better informed decision making
(b) scrutiny, discussion, comment and review of G activities
s 3(3) Recognizes that G info is a national resource- for public purposes
s 3(4) Act seeks to facilitate and promote public access to information
promptly AND at the lowest reasonable cost
STEP 1: Determine whether it involves Commonwealth or State FOI –
apply accordingly- may be BOTH- depends on who has the document
Commonwealth: Freedom of Information Act 1982 (Cth)
State: Freedom of Information Act 1991 (SA)
STEP 2: Does the person have a right to access the document?
• Commonwealth: s 11(1): Every person has a legally enforceable right to
obtain access in accordance with this Act to
(a) any document of an agency
(b) an official document of a minister
• State: s 12: A person has a legally enforceable right to be given access to an
agency’s documents in accordance with this Act.
• AGENCY’S POSSESSION: A document is still liable to be accessed under
FOI even if it was created by 3rd party, PROVIDED a copy is held by an
agency subject to FOI Cth s 4 / SA s 12
THEN:
2. 1. No standing test ‘every person’ (Cth) or ‘a person’ (SA) has a right to
apply.
2. 2. Motive is irrelevant Cth s 11(2) / same is implied in SA
2. 3. Do any fees apply? No application fee for Cth (processing charges
apply)/ $33.50 application fee in SA (plus processing charges- may be high)
2. 4. Do time limits apply? Should check legislation to clarify. (assuming
there is no applicable…)
2. 5. What documents does the FOI legislation apply to?
Is the document defined anywhere apart from the FOI?
• Cth s 4(1): What is the document? What agency has it?
• 4(1)(a) : a document is a document of an agency if… the document is in
the possession of the agency, whether created n the agency or received by
the agency
• Not necessary the agency created the doc. It is enough that IT HAS a
copy in IT’S POSSESSION (or has a contractual right to is- s 6C)
• Document is broadly defined: any record of information (paper,
mechanical, electronic) and duplicates
• Some exclusions: ‘material maintained for reference purposes that is
otherwise publicly available’ and Cabinet notebooks (s 4)
• SA s 4(1): a document includes anything in which info is stored or
anything from which info may be reproduced
• s 4(4): An agency’s docs includes docs to which it has an ‘immediate
right of access’
6. Request for access: Must follow the requirements for request as stated in
Cth s 15/ SA s 13.
STEP 3: EXEMPTIONS (2 types)
STEP 3.1: EXEMPT AGENCIES:
Is it an agency that is expressly excluded from the FOI Acts?
• A range of agencies are expressly excluded from the FOI Act
Cth s 7(2) exempts agencies listed in Schedule 2.
SA s 4 exempts agencies listed in Schedule 2.
While agencies may rely upon an exemption to refuse access,
Access may be granted to documents that have been edited to conceal
exempt parts if it is reasonably practicable to do so (Cth s22)
STEP 3.2: EXEMPT DOCUMENTS:
• ‘Exempt’- 1 step. Documents which are exempt simply by virtue of the
type of document they are.– Cth s 11A(4)
Exempted documents – Part IV Cth/ Sch 1 SA
Need to see if the document satisfies one of these sections- refer to
section of statute
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Freedom of information purpose - cth s 3- open government- promotion of access to information s 3(1)(a)- requires agencies to publish info (b)- provides right of access to documents s 3(2)- promote representative democracy. (a) increased participation. Step 1: determine whether it involves commonwealth or state foi apply accordingly- may be both- depends on who has the document. Foi even if it was created by 3rd party, provided a copy is held by an agency subject to foi cth s 4 / sa s 12. No standing test every person" (cth) or a person" (sa) has a right to apply: 2. Motive is irrelevant cth s 11(2) / same is implied in sa: 3. No application fee for cth (processing charges apply)/ . 50 application fee in sa (plus processing charges- may be high: 4. Should check legislation to clarify. (assuming there is no applicable : 5.
