LAW 1504 Lecture Notes - Lecture 7: Information Commissioner
18 Sep 2018
School
Department
Course
Professor
FREEDOM OF INFORMATION
How to know whether to use commonwealth FOI or state FOI?
All dependent on who has the document
- If the document is created in SA and circulates SA, only use SA FOI act
- However, if the document is created in SA, passed to CTH or vice versa, then can
consider using both
COMMONWEALTH FOI
Is there a right of access? (Standing Test)
- s11 subject to this Act, every person has a legally enforceable right to obtain access
to a document
Fees
- no application fees, however processing fees apply
What document do FOI apply to? And does the FOI Act apply to this document in question
- definition of documents, does the report fall in this definition?
- s4 interpretation, a document includes; any of, or any part of any of, the following
things.
- Eg, a report does fall into this definition
- Document of an agency, in possession of the agency, whether created or received
Agency Exempt?
- s7 and schedule 2 show the list of exempt agencies
- if it is not listed then the agency is not exempt
Is the document exempt?
Unconditional exemptions, list s33 – 47
- Do not have to prove anything for an unconditional exemption, if it is listed, then it is
100% exempt regardless, for example cabinet documents
Conditional exemptions, list s47b – 47j
- Different conditional exemptions, look at the category that they fit in and pick one to
run
- If it is in relation, or a report about whether the government should do something or
not
- If it does fit, and choose to run a conditional exemption test then have to run public
interest test at s11(b), to weight up factors for/ against disclosure
Public interest test: (factors favouring access, good reasons to disclose a document)
1. Promote the objects of this Act
2. Inform debate on a matter of public importance
3. Promote effective oversight of public expenditure
4. Allow a person to access his or her own personal information
Right of Review
When you have been refused access to the document, where do you go then?
- Internal review, within the department
Document Summary
If the document is created in sa and circulates sa, only use sa foi act. However, if the document is created in sa, passed to cth or vice versa, then can consider using both. Is there a right of access? (standing test) s11 subject to this act, every person has a legally enforceable right to obtain access to a document. No application fees, however processing fees apply. Definition of documents, does the report fall in this definition? s4 interpretation, a document includes; any of, or any part of any of, the following things. Document of an agency, in possession of the agency, whether created or received. Agency exempt? s7 and schedule 2 show the list of exempt agencies if it is not listed then the agency is not exempt. Do not have to prove anything for an unconditional exemption, if it is listed, then it is.
