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This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
RIGHT TO INFORMATION BILL 2009
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
3. Object of Act
4. Act binds Crown
5. Interpretation
6. Exclusions of certain persons or bodies
PART 2 RIGHT TO INFORMATION
Division 1 General right to information
7. Right to information
8. Persons entitled to some information provided to public
authority by funded private organisation
9. Persons not entitled to apply for certain information already
otherwise available
10. Electronic information
11. Information held by Archives Office
12. Information to be provided apart from Act
Division 2 Process for assessed disclosure of information
13. Application for assessed disclosure of information
14. Transfer of applications
[Bill 68]-I
15. Time within which applications for assessed disclosure of
information are to be decided
16. Charges for information
17. Deferment of provision of information
18. Provision of information
19. Requests may be refused if resources unreasonably diverted
20. Repeat or vexatious applications may be refused
21. Decision to be made on behalf of public authority by authorised
person
22. Reasons to be given
23. Other responsibilities of principal officer
24. Principal officer or Minister may delegate his or her functions
PART 3 EXEMPT INFORMATION
Division 1 Exemptions not subject to public interest test
25. Executive Council information
26. Cabinet information
27. Internal briefing information of a Minister
28. Information not relating to official business
29. Information affecting national or state security, defence or
international relations
30. Information relating to enforcement of the law
31. Legal professional privilege
32. Information related to closed meetings of council
Division 2 Exemptions subject to public interest test
33. Public interest test
34. Information communicated by other jurisdictions
35. Internal deliberative information
36. Personal information of person
37. Information relating to business affairs of third party
38. Information relating to business affairs of public authority
39. Information obtained in confidence
2
40. Information on procedures and criteria used in certain
negotiations of public authority
41. Information likely to affect State economy
42. Information likely to affect cultural, heritage and natural
resources of the State
PART 4 REVIEW OF DECISIONS
43. Internal review
44. Application for external review
45. Other applications for review
46. Review where decisions delayed
47. Powers of Ombudsman
48. Decisions of Ombudsman
PART 5 MISCELLANEOUS
49. Guidelines and advice
50. Offences
51. Protection against actions for defamation or breach of
confidence
52. Protection in respect of criminal offences under other Acts
53. Reporting
54. Regulations
55. Administration of Act
56. Legislation repealed
57. Legislation rescinded
SCHEDULE 1 MATTERS RELEVANT TO ASSESSMENT OF
PUBLIC INTEREST
SCHEDULE 2 MATTERS IRRELEVANT TO ASSESSMENT OF
PUBLIC INTEREST
SCHEDULE 3 MATTERS RELEVANT TO ASSESSMENT OF
REFUSING APPLICATION
SCHEDULE 4 LEGISLATION REPEALED
SCHEDULE 5 LEGISLATION RESCINDED
3
4
RIGHT TO INFORMATION BILL 2009
(Brought in by the Minister for Justice, the Honourable
Larissa Tahireh Giddings)
A BILL FOR
An Act to give members of the public the right to obtain
information contained in the records of the Government
and public authorities and for related purposes
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 PRELIMINARY
1. Short title
This Act may be cited as the Right to
Information Act 2009.
2. Commencement
This Act commences on 1 July 2010 or on such
earlier day as may be proclaimed.
3. Object of Act
(1) The object of this Act is to improve democratic
government in Tasmania
[Bill 68] 5
Right to Information Act 2009
Act No. of
s. 3 Part 1 Preliminary
(a) by increasing the accountability of the
executive to the people of Tasmania; and
(b) by increasing the ability of the people of
Tasmania to participate in their
governance; and
(c) by acknowledging that information
collected by public authorities is
collected for and on behalf of the people
of Tasmania and is the property of the
State.
(2) This object is to be pursued by giving members
of the public the right to obtain information held
by public authorities and Ministers.
(3) This object is also to be pursued by giving
members of the public the right to obtain
information about the operations of Government.
(4) It is the intention of Parliament
(a) that this Act be interpreted so as to
further the object set out in
subsection (1); and
(b) that discretions conferred by this Act be
exercised so as to facilitate and promote,
promptly and at the lowest reasonable
cost, the provision of the maximum
amount of official information.
6
Right to Information Act 2009
Act No. of
Part 1 Preliminary s. 4
4. Act binds Crown
This Act binds the Crown in right of Tasmania
and, so far as the legislative power of Parliament
permits, the Crown in all its other capacities.
5. Interpretation
(1) In this Act, unless the contrary intention
appears
"active disclosure" means a disclosure of
information by a public authority or a
Minister in response to a request from a
person made otherwise than under
Division 2 of Part 2;
"Archives Office" has the same meaning as
in the Archives Act 1983;
"assessed disclosure" means a disclosure of
information by a public authority or a
Minister in response to an application in
accordance with section 13;
"council-owned company" means a company
incorporated under the Corporations Act
that is controlled by one or more councils
or another company that is so controlled;
"delegated officer" means a person specified
in an instrument of delegation in
accordance with section 24;
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Right to Information Act 2009
Act No. of
s. 5 Part 1 Preliminary
"exempt information" means information
which is exempt information by virtue of
a provision of Part 3;
"external party" means a person or
organisation who provides the person's
or organisation's views pursuant to a
request under section 36(2)(f) or
section 37(2)(f);
"information" means
(a) anything by which words,
figures, letters or symbols are
recorded and includes a map,
plan, graph, drawing, painting,
recording and photograph; and
(b) anything in which information is
embodied so as to be capable of
being reproduced;
"information in the possession of a
Minister" means information in the
possession of a Minister that relates to
the official business of the Minister, but
does not include information which is in
the possession of the Minister for the sole
purpose of collation and forwarding to a
body other than a public authority;
"information in the possession of a public
authority" means information in the
possession of a public authority that
relates to the official business of the
authority, but does not include
information which is in the possession of
8
Right to Information Act 2009
Act No. of
Part 1 Preliminary s. 5
the public authority for the sole purpose
of collation and forwarding to a body
other than another public authority;
"Integrity Commission" has the same
meaning as in the Integrity Commission
Act 2009;
"officer", in relation to a public authority,
includes a member of the public
authority, a member of the staff of the
public authority and any person
employed by or for the public authority,
whether or not that person is a State
Service officer or State Service
employee;
"Ombudsman" means the Ombudsman
appointed under the Ombudsman Act
1978;
"personal information" means any
information or opinion in any recorded
format about an individual
(a) whose identity is apparent or is
reasonably ascertainable from the
information or opinion; and
(b) who is alive, or has not been dead
for more than 25 years;
"principal officer" means
(a) in relation to an Agency, within
the meaning of the State Service
Act 2000, the Head of Agency; or
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Right to Information Act 2009
Act No. of
s. 5 Part 1 Preliminary
(b) in relation to the Police Service,
the Commissioner of Police; or
(c) in relation to a council, the
general manager of that council;
or
(d) the chief executive of a State-
owned company or council-
owned company; or
(e) the chief executive officer of a
Government Business Enterprise;
or
(f) in the case of any other public
authority, the principal
administrative officer of the
public authority;
"public authority" means
(a) an Agency, within the meaning of
the State Service Act 2000; or
(b) the Police Service; or
(c) a council; or
(d) a statutory authority; or
(e) a body, whether corporate or
unincorporate, that is established
by or under an Act for a public
purpose; or
(f) a body whose members, or a
majority of whose members, are
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Right to Information Act 2009
Act No. of
Part 1 Preliminary s. 5
appointed by the Governor or a
Minister of the Crown; or
(g) a Government Business
Enterprise within the meaning of
the Government Business
Enterprises Act 1995; or
(h) a council-owned company; or
(i) a State-owned company;
"regulations" means regulations made and in
force under this Act;
"required disclosure" means a disclosure of
information by a public authority where
the information is required to be
published by this or any other Act, or
where disclosure is otherwise required by
law or enforceable under an agreement;
"responsible Minister" means
(a) in relation to an Agency, within
the meaning of the State Service
Act 2000, the Minister
responsible for the administration
of the Agency; or
(b) in relation to another public
authority, the Minister
administering the Act by which
the public authority was
established;
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Act No. of
s. 5 Part 1 Preliminary
"routine disclosure" means a disclosure of
information by a public authority which
the public authority decides may be of
interest to the public, but which is not a
required disclosure, an assessed
disclosure or an active disclosure;
"State-owned company" means a company
incorporated under the Corporations Act
that is controlled by
(a) the Crown; or
(b) a Government Business
Enterprise; or
(c) a statutory authority; or
(d) another company that is so
controlled;
"statutory authority" means a body or
authority, whether incorporated or not,
that is established or constituted by or
under an Act or under the royal
prerogative, being a body or authority
which, or of which the governing
authority, wholly or partly comprises a
person or persons appointed by the
Governor, a Minister or another statutory
authority but does not include an agency.
(2) For the purpose of the definition of "information
in the possession of a Minister", a Minister is
taken to be in possession of information if the
Minister is entitled to access the information and
12
Right to Information Act 2009
Act No. of
Part 1 Preliminary s. 5
it is not information in the possession of a public
authority.
(3) For the purpose of the definition of "information
in the possession of a public authority", a public
authority is taken to be in possession of
information if the public authority is entitled to
the information and it is not information in the
possession of a Minister.
(4) An unincorporated body established by or in
accordance with an Act for the purpose of
assisting or performing functions connected with
a public authority is not taken to be a public
authority for the purposes of this Act but is taken
to be comprised within the public authority.
(5) A person is not a public authority solely because
the person holds, or performs the duties of
(a) a prescribed office; or
(b) an office the duties of which the person
performs as duties of his or her
employment as an officer of a public
authority; or
(c) an office or member of a public
authority; or
(d) an office established by or in accordance
with an Act for the purposes of a public
authority.
(6) A reference to the personal affairs of a person
includes the personal affairs of a deceased
person, and rights given by this Act in respect of
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Right to Information Act 2009
Act No. of
s. 6 Part 1 Preliminary
the personal affairs of a person are, where the
person is a deceased person, taken to be rights
that may be exercised in respect of those
personal affairs by the next-of-kin of that person.
6. Exclusions of certain persons or bodies
(1) This Act does not apply to information in the
possession of the following persons or public
authorities, or in the possession of a person
whose services are provided or procured for the
purposes of assisting the person or public
authority, unless the information relates to the
administration of the relevant public authority:
(a) a court;
(b) a tribunal;
(c) the Integrity Commission;
(d) a judge;
(e) an associate judge;
(f) a magistrate;
(g) the Solicitor-General;
(h) the Director of Public Prosecutions;
(i) the Ombudsman;
(j) the Auditor-General;
(k) the State Service Commissioner;
14
Right to Information Act 2009
Act No. of
Part 1 Preliminary s. 6
(l) the Anti-Discrimination Commissioner;
(m) the Public Guardian;
(n) the Health Complaints Commissioner;
(o) Parliament;
(p) a Member of Parliament.
(2) This Act does not apply to the Law Society of
Tasmania (the "society") established under the
Law Society Act 1962 and continued as a body
corporate under the Legal Profession Act 2007
except
(a) in relation to the performance and
exercise of the society's functions and
powers under Parts 8 and 9 of the Legal
Profession Act 1993; and
(b) in relation to the performance and
exercise of the society's functions and
powers as a prescribed authority under
Part 3.2 of Chapter 3 and Chapter 5 of
the Legal Profession Act 2007.
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Act No. of
s. 7 Part 2 Right to Information
PART 2 RIGHT TO INFORMATION
Division 1 General right to information
7. Right to information
A person has a legally enforceable right to be
provided, in accordance with this Act, with
information in the possession of a public
authority or a Minister unless the information is
exempt information.
8. Persons entitled to some information provided to
public authority by funded private organisation
If a private organisation is funded by or performs
a role of a public authority, a person is entitled to
the information related to
(a) that performance; or
(b) the progress of work; or
(c) the evaluation of work; or
(d) the expenditure of public moneys
held by the public authority, unless the
information is exempt information.
9. Persons not entitled to apply for certain
information already otherwise available
A person is not entitled under this Part to
16
Right to Information Act 2009
Act No. of
Part 2 Right to Information s. 10
(a) information that may be inspected by the
public in accordance with another Act; or
(b) information that may be purchased at a
reasonable cost in accordance with
arrangements made by a public authority.
10. Electronic information
(1) If information is stored in an electronic form, a
Minister or public authority may refuse an
application under section 13 if
(a) the information cannot be produced
using the normal computer hardware and
software and technical expertise of the
public authority; and
(b) producing it would substantially and
unreasonably divert the resources of the
public authority from its usual
operations, having regard to the factors in
Schedule 3.
(2) A person is not entitled to information contained
in back-up systems, or information that has been
disposed of in compliance with an approved
disposal schedule issued under the Archives Act
1983.
11. Information held by Archives Office
(1) A record placed in the custody of the Archives
Office by a public authority is taken for the
17
Right to Information Act 2009
Act No. of
s. 12 Part 2 Right to Information
purposes of this Act to be information in the
possession of that public authority or, if that
public authority no longer exists, the public
authority the functions of which the information
is most closely related to.
(2) Notwithstanding subsection (1), records of a
Royal Commission or a Commission under the
Commissions of Inquiry Act 1995 deposited in
the Archives Office are, for the purpose of this
Act, to be taken to be information in the
possession of the Department.
(3) Subsection (1) does not apply to a record that
can be inspected by the public at the Archives
Office otherwise than in accordance with this
Act.
(4) Sections 15 and 16 of the Archives Act 1983 do
not prevent a person from being provided, in
accordance with this Act, with information
contained in a State record deposited in the
Archives Office.
(5) This Act does not affect access to records in the
Archives Office in accordance with the Archives
Act 1983.
12. Information to be provided apart from Act
(1) This Act does not prevent and is not intended to
discourage a public authority or a Minister from
publishing or providing information (including
exempt information), otherwise than as required
by this Act.
18
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Act No. of
Part 2 Right to Information s. 12
(2) Subject to guidelines issued by the Ombudsman
under section 49, public authorities or Ministers
may disclose information to the public as
(a) a required disclosure; or
(b) a routine disclosure; or
(c) an active disclosure; or
(d) an assessed disclosure.
(3) Assessed disclosure is the method of disclosure
of last resort and
(a) the principal officer of a public authority
is to ensure that there are adequate
processes in place in the public authority
to ensure that there is appropriate active
disclosure, routine disclosure or required
disclosure of information by the public
authority; and
(b) the principal officer of a public authority
is to ensure that the processes in place
under paragraph (a) comply with the
guidelines issued by the Ombudsman
under section 49; and
(c) the principal officer of a public authority
or a Minister may refuse an application
made in accordance with section 13 if the
information that is the subject of the
application
(i) is otherwise available; or
19
Right to Information Act 2009
Act No. of
s. 13 Part 2 Right to Information
(ii) will become available, in
accordance with a decision that
was made before receipt of the
application, as a required
disclosure or routine disclosure
within a period of time specified
by the public authority or
Minister but not exceeding 12
months from the date of the
application.
Division 2 Process for assessed disclosure of information
13. Application for assessed disclosure of information
(1) An application for assessed disclosure of
information may be made to any public authority
or Minister who the applicant believes has the
information.
(2) A person who seeks
(a) information in the possession of a public
authority; or
(b) information in the possession of a
Minister
must make a written application to the public
authority or Minister for an assessed disclosure
of the information.
(3) An application must contain the minimum
information as prescribed in the regulations.
20
Right to Information Act 2009
Act No. of
Part 2 Right to Information s. 13
(4) An application for an assessed disclosure of
information may be made by reference to the
information contained in a particular record or
document without specifying the subject matter
of that record or document.
(5) A public authority must provide the minimum
information as prescribed in the regulations to an
applicant about the public authority's assessment
procedure for applications for assessed
disclosures of information.
(6) If a person
(a) wants to make an application to a public
authority or Minister; or
(b) has made an application that does not
comply with this section
the public authority or Minister must take
reasonable steps to assist the person to make an
application that complies with this section.
(7) A public authority or a Minister may negotiate
with an applicant to refine or redirect his or her
application for assessed disclosure of
information.
(8) If requested to do so by a person or if it is
appropriate to do so to assist a person to make an
application for assessed disclosure of
information, a public authority must make
available to that person general details of the
information in the possession of the public
authority.
21
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Act No. of
s. 14 Part 2 Right to Information
14. Transfer of applications
(1) If the application for assessed disclosure of
information is made to a public authority or a
Minister and the subject matter or part of the
subject matter of the information requested is
more closely connected with the functions of
another public authority or Minister, the public
authority or Minister to which the application
was made must
(a) promptly transfer the application, in full
or part, to that other public authority or
that other Minister and inform the person
making the application accordingly; and
(b) if it is necessary to do so in order to
enable that other public authority or that
other Minister to deal with the
application, send any relevant
information to that public authority or
Minister.
(2) If an application is transferred to a public
authority or Minister, it is to be taken, for the
purpose of section 15, to be an application made
to that public authority or Minister and received
by the public authority or Minister
(a) at the time at which the transfer was
made; or
(b) at the expiration of 10 working days after
the date of the original application
whichever first occurs.
22
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Act No. of
Part 2 Right to Information s. 15
(3) If an application is made to the Archives Office
for information contained in a record to which
section 11(1) applies, the Archives Office must
promptly transfer the application to the public
authority taken, by virtue of that subsection, to
be in possession of that record and must inform
the applicant accordingly.
15. Time within which applications for assessed
disclosure of information are to be decided
(1) A public authority or Minister must take all
reasonable steps to enable an applicant to be
notified of a decision on an application for an
assessed disclosure of information as soon as
practicable but in any case not later than 20
working days after the acceptance of the
application.
(2) Where negotiations are entered into under
section 13(7), the negotiations are to be
completed expeditiously and in any case not
later than 10 working days after the receipt of
the application.
(3) Subject to section 16(3), an application for an
assessed disclosure is taken to be accepted by a
public authority or Minister for the purposes of
subsection (1)
(a) on the day the application is received by
the public authority or Minister; or
(b) if negotiations are entered into under
section 13(7), on completion of the
23
Right to Information Act 2009
Act No. of
s. 15 Part 2 Right to Information
period for negotiations under
subsection (2).
(4) The time within which a public authority or a
Minister is to make a decision on an application
for assessed disclosure may be extended
(a) by agreement with the applicant; or
(b) if agreement cannot be reached and the
application is complex or voluminous or
both complex and voluminous in nature
and the absence of agreement is in the
opinion of the public authority
unreasonable, by the Ombudsman on an
application made to the Ombudsman by
the public authority.
(5) Where a public authority or Minister has decided
to consult a third party under section 36 or 37
about the release of information in determining
an assessed disclosure, a further 20 working days
in addition to the 20 working days referred to in
subsection (1) is allowed for a decision on an
application for an assessed disclosure.
(6) If there is no response from the third party
within 15 working days from the time of the
consultation, the public authority or Minister
may conclude the assessment without
considering the input of the third party.
(7) Nothing in this section permits the release of
information during
(a) the relevant period specified in
section 36(5) in the case of an application
24
Right to Information Act 2009
Act No. of
Part 2 Right to Information s. 16
relating to the personal information of a
person; or
(b) the relevant period specified in
section 37(5) in the case of an application
relating to the business affairs of a third
party.
16. Charges for information
(1) All applications for assessed disclosure of
information must be accompanied by an
application fee of 25 fee units.
(2) The application fee may be waived if
(a) the applicant is impecunious; or
(b) the applicant is a Member of Parliament
acting in connection with his or her
official duty; or
(c) the applicant is able to show that he or
she intends to use the information for a
purpose that is of general public interest
or benefit.
(3) Before an application is accepted by a public
authority or a Minister, the application fee must
be paid or a decision to waive the fee under
subsection (2) must be made.
25
Right to Information Act 2009
Act No. of
s. 17 Part 2 Right to Information
17. Deferment of provision of information
(1) A public authority or a Minister may defer
providing information if
(a) a decision has been made before receipt
of the application for assessed disclosure
of information that the information will
be disclosed as a required disclosure or
routine disclosure of information within
a period of time specified by the public
authority or Minister but not exceeding
12 months from the date of the
application; or
(b) the information was prepared for
presentation to Parliament, or has been
designated by the responsible Minister as
appropriate for presentation to
Parliament, but is yet to be presented.
(2) If the provision of information is deferred, the
public authority or Minister must, when
informing the applicant of the reason for the
deferral, indicate as far as practicable, when the
information will be published or presented.
(3) A public authority or a Minister has no power
under subsection (1)(b) to defer providing
information when more than 15 sitting-days of
either House of Parliament have passed since the
information was presented to the Minister for the
purpose of being presented to Parliament.
26
Right to Information Act 2009
Act No. of
Part 2 Right to Information s. 18
18. Provision of information
(1) Information requested under this Act may be
provided
(a) by giving the applicant a reasonable
opportunity to inspect the record
containing the information; or
(b) in the case of information recorded or
embodied in a record in a manner in
which it can be reproduced, by providing
the applicant with a transcript of the
information; or
(c) by providing the applicant with a copy,
including an electronic copy, of the
record containing the information; or
(d) in the case of information contained in a
record from which sounds or visual
images can be reproduced, by giving the
applicant a reasonable opportunity to
hear the sounds or view the images.
(2) A copy of information that is provided with
exempt information deleted is to have included
on it a note to the effect that the copy is not a
complete copy of the original information.
(3) If
(a) information requested under this Act is
included with other information; and
(b) the information requested can be
extracted from that other information by
27
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Act No. of
s. 18 Part 2 Right to Information
the use of a computer or other equipment
usually available to the public authority
or Minister
the information is to be extracted accordingly.
(4) Without prejudice to subsection (1), if
(a) a public authority or a Minister has
information requested by an applicant in
a particular form; and
(b) the applicant has indicated a preference
for receiving the information in that
particular form
the public authority or Minister must provide
that information by providing the applicant with
the information or part of the information in the
particular form unless it is impracticable to do so
or to do so would breach copyright.
(5) If
(a) a request is made to a public authority or
Minister for information of a medical or
psychiatric nature concerning the person
making the request; and
(b) it appears to the principal officer of the
public authority or to that Minister that
the provision of the information to that
person might be prejudicial to the
physical or mental health or wellbeing of
that person
28
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Act No. of
Part 2 Right to Information s. 19
the principal officer or Minister may direct that
the information must not be provided to the
person who made the request but must instead be
provided to a legally qualified medical
practitioner nominated by that person and
approved by the principal officer or Minister.
19. Requests may be refused if resources unreasonably
diverted
(1) If the public authority or Minister dealing with a
request is satisfied that the work involved in
providing the information requested
(a) would substantially and unreasonably
divert the resources of the public
authority from its other work; or
(b) would interfere substantially and
unreasonably with the performance by
that Minister of the Minister's other
functions
having regard to
(c) the matters specified in Schedule 3
the public authority or Minister may refuse to
provide the information without identifying,
locating or collating the information.
(2) A public authority or Minister must not refuse to
provide information by virtue of subsection (1)
without first giving the applicant a reasonable
opportunity to consult the public authority or
Minister with a view to the applicant being
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Act No. of
s. 20 Part 2 Right to Information
helped to make an application in a form that
would remove the ground for refusal.
20. Repeat or vexatious applications may be refused
If an application for an assessed disclosure of
information is made by an applicant for access to
information which
(a) in the opinion of the public authority or a
Minister, is the same or similar to
information sought under a previous
application to a public authority or
Minister and the application does not, on
its face, disclose any reasonable basis for
again seeking access to the same or
similar information; or
(b) is an application which, in the opinion of
the public authority or Minister, is
vexatious or remains lacking in
definition after negotiation entered into
under section 13(7)
the public authority or Minister may refuse the
application on the basis that it is a repeat or
vexatious application.
21. Decision to be made on behalf of public authority
by authorised person
(1) A decision in respect of an application for
information made to a public authority is to be
made by
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Act No. of
Part 2 Right to Information s. 22
(a) the responsible Minister; or
(b) the principal officer of the public
authority; or
(c) a delegated officer.
(2) A person who makes a decision in accordance
with this Act is to act impartially in making that
decision.
22. Reasons to be given
(1) If, in relation to an application for information
made to a public authority or Minister, the public
authority or Minister decides
(a) that the applicant is not entitled to the
information because it is exempt
information; or
(b) that provision of the information be
deferred in accordance with section 17;
or
(c) that provision of the information be
refused by virtue of section 19 or 20
the public authority or Minister must give the
applicant written notice of the decision.
(2) Notice given under subsection (1) is to
(a) state the reasons for the decision; and
(b) if the decision was made on behalf of a
public authority or Minister, state the
31
Right to Information Act 2009
Act No. of
s. 22 Part 2 Right to Information
name and designation of the person who
made the decision; and
(c) inform the applicant of
(i) the applicant's right to apply for a
review of the decision; and
(ii) the authority to which the
application for review can be
made; and
(iii) the time within which the
application for review must be
made; and
(d) if the decision involves or relies upon
consideration of the public interest in the
application of a provision of this Act,
state the public interest considerations on
which that decision was based.
(3) A public authority or Minister is not required by
subsections (1) and (2) to include in a notice
given under subsection (1) any exempt
information.
(4) A public authority or Minister may, in a notice
given under subsection (1), state the decision in
terms which neither confirm nor deny the
existence of any information which on a ground
specified in Division 1 of Part 3 would be
exempt information.
32
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Act No. of
Part 2 Right to Information s. 23
23. Other responsibilities of principal officer
(1) The principal officer of a public authority must
(a) develop policies and procedures in
relation to disclosure of information for
use in the public authority; and
(b) publish details of this Act, including the
policies and procedures developed under
paragraph (a), and the way in which
people can exercise their rights under it
in respect of the public authority; and
(c) as soon as practicable after the end of
each financial year provide details on
information published as required
disclosures or routine disclosures by the
public authority; and
(d) as soon as practicable after the end of
each financial year provide details on
information released as assessed
disclosures, in particular
(i) the number of applications made
to the public authority under this
Act; and
(ii) the number of applications
refused by the public authority
and the provisions of this Act
under which they were refused;
and
(iii) the number of applications
relating to information which was
33
Right to Information Act 2009
Act No. of
s. 24 Part 2 Right to Information
exempt information or part of the
information was exempt
information and the provisions of
this Act under which the
information was exempt
information; and
(iv) the number of applications for
internal review made to the
principal officer under section 43
and the results of those
applications.
(2) The principal officer of a public authority may
appoint an officer to assist him or her with the
functions specified in subsection (1).
24. Principal officer or Minister may delegate his or her
functions
(1) The principal officer of a public authority or a
Minister may by instrument in writing delegate
to a person specified in the instrument the
performance or exercise of such of his or her
functions or powers under this Act (other than
this power of delegation) as are specified in the
instrument, and may, by instrument in writing,
revoke wholly or in part any such delegation.
(2) A delegation may be for a period not exceeding
3 years.
(3) The principal officer of a public authority or a
Minister must not delegate to a person the
performance or exercise of his or her functions
34
Right to Information Act 2009
Act No. of
Part 2 Right to Information s. 24
or powers under this Act unless the principal
officer or Minister is satisfied that the person has
the skills and knowledge necessary to perform or
exercise those functions or powers.
(4) Notwithstanding any delegation under this
section, the principal officer of a public authority
or a Minister may continue to perform or
exercise all or any of the functions or powers
delegated.
(5) Any act or thing done by or to a delegate while
acting in the exercise of a delegation under this
section has the same force and effect as if the act
or thing had been done by or to the principal
officer of a public authority or a Minister and is
taken to have been done by or to the principal
officer or Minister.
35
Right to Information Act 2009
Act No. of
s. 25 Part 3 Exempt Information
PART 3 EXEMPT INFORMATION
Division 1 Exemptions not subject to public interest test
25. Executive Council information
(1) Information is exempt information if it is
contained in
(a) the official record of a deliberation or
decision of the Governor or the
Executive Council; or
(b) a record prepared for the purpose of
being submitted to the Governor or the
Executive Council for consideration; or
(c) a record that is a copy of, or a copy of
part of, a record referred to in
paragraph (a) or (b); or
(d) a record, the disclosure of which would
involve the disclosure of a deliberation or
decision of the Governor or the
Executive Council, other than a record by
which a decision of the Governor or the
Executive Council was officially
published.
(2) Subsection (1) does not include information
solely because it is contained in a record that
(a) was submitted to the Governor or
Executive Council for consideration; or
36
Right to Information Act 2009
Act No. of
Part 3 Exempt Information s. 26
(b) is proposed to be submitted to the
Governor or Executive Council for
consideration
if the record was not brought into existence for
submission to the Governor or Executive
Council for consideration.
(3) Subsection (1) does not include purely factual
information unless its disclosure would disclose
a deliberation or decision of the Governor or
Executive Council which has not been officially
published.
26. Cabinet information
(1) Information is exempt information if it is
contained in
(a) the official record of a deliberation or
decision of the Cabinet; or
(b) a record proposed by a Minister for the
purpose of being submitted to the
Cabinet for consideration; or
(c) a record that is a copy of, or a copy of
part of, a record referred to in
paragraph (a) or (b); or
(d) a record, the disclosure of which would
involve the disclosure of a deliberation or
decision of the Cabinet, other than a
record by which a decision of the Cabinet
was officially published.
37
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Act No. of
s. 27 Part 3 Exempt Information
(2) Subsection (1) ceases to apply after the end of
the period of 10 years commencing on the date
on which the information referred to in that
subsection was first considered by the Cabinet at
a meeting of the Cabinet.
(3) Subsection (1) does not include information
solely because it
(a) was submitted to the Cabinet for
consideration; or
(b) is proposed by a Minister to be submitted
to the Cabinet for consideration
if the information was not brought into existence
for submission to the Cabinet for consideration.
(4) Subsection (1) does not include purely factual
information unless its disclosure would disclose
a deliberation or decision of the Cabinet which
has not been officially published.
(5) Nothing in this section prevents the Premier
from voluntarily disclosing information that is
otherwise exempt information.
(6) In this section
"the Cabinet" includes a committee of the
Cabinet.
27. Internal briefing information of a Minister
(1) Information is exempt information if it consists
of
38
Right to Information Act 2009
Act No. of
Part 3 Exempt Information s. 27
(a) an opinion, advice or a recommendation
prepared by an officer of a public
authority or a Minister; or
(b) a record of consultations or deliberations
between officers of public authorities and
Ministers
in the course of, or for the purpose of, providing
a Minister with a briefing in connection with the
official business of a public authority, a Minister
or the Government and in connection with the
Minister's parliamentary duty.
(2) Subsection (1) ceases to apply after the end of
the period of 10 years commencing on the date
of the creation of the information referred to in
that subsection.
(3) Subsection (1) does not include information
solely because it
(a) was submitted to a Minister for the
purposes of a briefing; or
(b) is proposed to be submitted to a Minister
for the purposes of a briefing
if the information was not brought into existence
for submission to a Minister for the purposes of
a briefing.
(4) Subsection (1) does not include purely factual
information unless its disclosure would reveal
the nature or content of the opinion, advice,
recommendation, consultation or deliberations of
the briefing.
39
Right to Information Act 2009
Act No. of
s. 28 Part 3 Exempt Information
(5) Nothing in this section prevents a Minister from
voluntarily disclosing information that is
otherwise exempt information.
28. Information not relating to official business
Information in the possession of a Minister is
exempt information if it does not relate to the
Minister's official business.
29. Information affecting national or state security,
defence or international relations
(1) Information is exempt information if its
disclosure under this Act would, or would be
reasonably likely to
(a) endanger the security of the
Commonwealth or any State or Territory;
or
(b) endanger the defence of the
Commonwealth; or
(c) adversely affect the international
relations of the Commonwealth; or
(d) divulge information about the location of
a dangerous substance or dangerous
goods.
(2) In this section
"dangerous substance" and "dangerous
goods" have the meaning given to those
40
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Act No. of
Part 3 Exempt Information s. 30
expressions in the Dangerous Substances
(Safe Handling) Act 2005.
30. Information relating to enforcement of the law
(1) Information is exempt information if its
disclosure under this Act would, or would be
reasonably likely to
(a) prejudice
(i) the investigation of a breach or
possible breach of the law; or
(ii) the enforcement or proper
administration of the law in a
particular instance; or
(iii) the fair trial of a person; or
(iv) the impartial adjudication of a
particular case; or
(b) disclose, or enable a person to ascertain,
the identity of a confidential source of
information in relation to the
enforcement or administration of the law;
or
(c) disclose methods or procedures for
preventing, detecting or investigating, or
dealing with matters arising out of,
breaches or evasions of the law, the
disclosure of which would, or would be
reasonably likely to, prejudice the
41
Right to Information Act 2009
Act No. of
s. 30 Part 3 Exempt Information
effectiveness of those methods or
procedures; or
(d) endanger the life or physical, emotional
or psychological safety of a person, or
increase the likelihood of harassment or
discrimination of a person; or
(e) disclose information gathered, collated or
created for intelligence, including but not
limited to databases of criminal
intelligence, forensic testing or
anonymous information from the public;
or
(f) hinder, delay or prejudice an
investigation of a breach or possible
breach of the law which is not yet
complete.
(2) Subsection (1) includes information that
(a) reveals that the scope of a law
enforcement investigation has exceeded a
limit imposed by law; or
(b) reveals the use of an illegal method or
procedure for preventing, detecting or
investigating, or dealing with a matter
arising out of, a breach or evasion of the
law; or
(c) contains a general outline of the structure
of a program adopted by a public
authority for investigating breaches of or
enforcing or administering the law; or
42
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Act No. of
Part 3 Exempt Information s. 30
(d) is a report on the degree of success
achieved in a program adopted by a
public authority for investigating
breaches of or enforcing or administering
the law; or
(e) is a report prepared in the course of a
routine law enforcement inspection or
investigation by a public authority with
the function of enforcing and regulating
compliance with a particular law other
than the criminal law if the inspection or
investigation is complete; or
(f) is a report on a law enforcement
investigation, if the substance of the
report has been disclosed to the person or
the body that is the subject of the
investigation
if it is contrary to the public interest that the
information should be given under this Act.
(3) The matters which must be considered in
deciding if the disclosure of information under
subsection (2) is contrary to the public interest
are specified in Schedule 1 but are not limited to
those matters.
(4) The matters specified in Schedule 2 are matters
that are irrelevant in deciding if the disclosure of
information under subsection (2) is contrary to
the public interest.
43
Right to Information Act 2009
Act No. of
s. 31 Part 3 Exempt Information
31. Legal professional privilege
Information is exempt information if it is of such
a nature that the information would be privileged
from production in legal proceedings on the
ground of legal professional privilege.
32. Information related to closed meetings of council
(1) Information is exempt information if it is
contained in
(a) the official record of a closed meeting of
a council; or
(b) information proposed by an officer of a
council or a councillor for the purpose of
being submitted to a closed meeting of a
council for consideration if the officer or
councillor has contributed to the origin,
subject or contents of that record; or
(c) information that is a copy of, or a copy of
part of, information referred to in
paragraph (a) or (b); or
(d) information, the disclosure of which
would involve the disclosure of a
deliberation or decision of a council
made at a closed meeting of the council,
other than information by which a
decision of the council was officially
published.
(2) Subsection (1) ceases to apply after the end of
the period of 10 years commencing on the date
44
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Act No. of
Part 3 Exempt Information s. 32
of the creation of the information referred to in
that subsection.
(3) Subsection (1) does not include information
solely because it
(a) was submitted to the closed meeting of a
council for consideration; or
(b) is proposed by an officer or councillor to
be submitted to the closed meeting of a
council for consideration
if the information was not brought into existence
for submission to the closed meeting for
consideration, unless its disclosure would
disclose a deliberation or decision of the closed
meeting which has not been officially published.
(4) Subsection (1) does not include purely factual
information unless its disclosure would disclose
a deliberation or decision of the closed meeting
of a council which has not been officially
published.
(5) In this section
"closed meeting of a council" means a
meeting of a council which is formally
closed to the public for a purpose
specified in regulations made under the
Local Government Act 1993 and includes
a closed meeting of a council committee.
45
Right to Information Act 2009
Act No. of
s. 33 Part 3 Exempt Information
Division 2 Exemptions subject to public interest test
33. Public interest test
(1) In this Division, information is exempt
information if the principal officer of the public
authority or Minister considers, after taking into
account all relevant matters, that it is contrary to
the public interest to disclose the information.
(2) The matters which must be considered in
deciding if the disclosure of the information is
contrary to the public interest are specified in
Schedule 1 but are not limited to those matters.
(3) The matters specified in Schedule 2 are matters
that are irrelevant in deciding if the disclosure of
the information is contrary to the public interest.
34. Information communicated by other jurisdictions
(1) Information is exempt information if
(a) its disclosure under this Act would
prejudice relations between
(i) two or more States; or
(ii) a State and the Commonwealth;
or
(iii) the Commonwealth or a State and
any other country; or
(b) the information was communicated in
confidence to
46
Right to Information Act 2009
Act No. of
Part 3 Exempt Information s. 34
(i) a public authority; or
(ii) a person on behalf of the public
authority
by
(iii) the Government or an authority
of the Commonwealth, of another
State or of another country; or
(iv) a person on behalf of the
Government or an authority of
the Commonwealth, of another
State or of another country
and its disclosure would be reasonably likely to
impair the ability of a public authority or
Minister to obtain similar information in the
future.
(2) Information is exempt information if
(a) the information was communicated to
(i) a public authority; or
(ii) a person on behalf of the
Government or public authority
by
(iii) the Government or an authority
of the Commonwealth or of
another State; or
(iv) a person on behalf of the
Government or an authority of
47
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Act No. of
s. 35 Part 3 Exempt Information
the Commonwealth or of another
State; and
(b) notice has been received from the
Government or an authority of the
Commonwealth or of the other State that
the information is not required to be
disclosed under, as the case may be, a
corresponding law of the Commonwealth
or of the other State.
(3) In this section
"corresponding law" means a law of the
Commonwealth or of another State that is
declared by the regulations to be a law
that corresponds to this Act;
"State" includes the Northern Territory and
the Australian Capital Territory.
35. Internal deliberative information
(1) Information is exempt information if it consists
of
(a) an opinion, advice or recommendation
prepared by an officer of a public
authority; or
(b) a record of consultations or deliberations
between officers of public authorities; or
(c) a record of consultations or deliberations
between officers of public authorities and
Ministers
48
Right to Information Act 2009
Act No. of
Part 3 Exempt Information s. 36
in the course of, or for the purpose of, the
deliberative processes related to the official
business of a public authority, of a Minister or of
the Government.
(2) Subsection (1) does not include purely factual
information.
(3) Subsection (1) does not include
(a) a final decision, order or ruling given in
the exercise of an adjudicative function;
or
(b) a reason which explains such a decision,
order or ruling.
(4) Subsection (1) ceases to apply after 10 years
from the date of the creation of the information
referred to in that subsection.
36. Personal information of person
(1) Information is exempt information if its
disclosure under this Act would involve the
disclosure of the personal information of a
person other than the person making an
application under section 13.
(2) If
(a) an application is made for information
under this Act; and
49
Right to Information Act 2009
Act No. of
s. 36 Part 3 Exempt Information
(b) the information was provided to a public
authority or Minister by a third party;
and
(c) the principal officer or Minister decides
that disclosure of the information
concerned may be reasonably expected to
be of concern to the third party
the principal officer or Minister is to, if
practicable and before deciding whether the
disclosure of the information under this Act
should occur, by notice in writing to the third
party
(d) notify that person that the public
authority or Minister has received an
application for the information; and
(e) state the nature of the information that
has been applied for; and
(f) request that, within 15 working days
from the date of the notice, the person
provide his or her view as to whether the
information should be provided.
(3) If a public authority or Minister, after receipt of
a person's view referred to in subsection (2)(f),
decides to provide the information, the public
authority or Minister must, by notice in writing
given to that person, notify that person of the
decision.
(4) A notice under subsection (3) is to
50
Right to Information Act 2009
Act No. of
Part 3 Exempt Information s. 36
(a) state the nature of the information to be
provided; and
(b) if the decision was made on behalf of a
public authority or Minister, state the
name and designation of the person who
made the decision; and
(c) inform the person to whom the notice is
addressed of
(i) that person's right to apply for a
review of the decision; and
(ii) the authority to which the
application for review can be
made; and
(iii) the time within which the
application must be made.
(5) A public authority or Minister must not provide
the information referred to in a notice given to a
person under subsection (3)
(a) until 10 working days have elapsed after
the date of notification of that person; or
(b) if during those 10 working days the
person applies under section 43 for a
review of the decision, until that review
determines that the information should
be provided; or
(c) until 20 working days after notification
of an adverse decision under section 43;
or
51
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Act No. of
s. 37 Part 3 Exempt Information
(d) if during those 20 workings days the
person applies for a review of the
decision under section 44, until that
review determines that the information
should be provided.
37. Information relating to business affairs of third
party
(1) Information is exempt information if its
disclosure under this Act would disclose
information related to business affairs acquired
by a public authority or Minister from a person
or organisation other than the person making an
application under section 13 (the "third party")
and
(a) the information relates to trade secrets; or
(b) the disclosure of the information under
this Act would be likely to expose the
third party to competitive disadvantage.
(2) If
(a) an application is made for information
under this Act; and
(b) the information was provided to a public
authority or Minister by a third party;
and
(c) the principal officer or Minister decides
that disclosure of the information
concerned may be reasonably expected to
52
Right to Information Act 2009
Act No. of
Part 3 Exempt Information s. 37
be of substantial concern to the third
party
the principal officer or Minister must, before
deciding whether the disclosure of the
information under this Act would be likely to
expose the third party that provided the
information to substantial harm to the third
party's competitive position, by notice in writing
given to the third party
(d) notify the third party that the public
authority or Minister has received an
application for the information; and
(e) state the nature of the information
applied for; and
(f) request that, within 15 working days
from the date of the notice, the third
party provide the third party's view as to
whether the information should be
provided.
(3) If a public authority or Minister, after receipt of
a third party's view referred to in
subsection (2)(f), decides to disclose the
information, the public authority or Minister
must, by notice in writing given to the third
party, notify the third party of the decision.
(4) A notice under subsection (3) is to
(a) state the nature of the information to be
provided; and
53
Right to Information Act 2009
Act No. of
s. 37 Part 3 Exempt Information
(b) if the decision was made on behalf of a
public authority, state the name and
designation of the person who made the
decision; and
(c) inform the third party of
(i) its right to apply for a review of
the decision; and
(ii) the authority to which the
application for review can be
made; and
(iii) the time within which the
application must be made.
(5) A public authority or Minister must not provide
the information referred to in a notice given to a
third party under subsection (3)
(a) until 10 working days have elapsed after
the date of notification of the third party;
or
(b) if during those 10 working days the third
party applies for a review of the decision
under section 43, until that review
determines that the information should
be provided; or
(c) until 20 working days after notification
of an adverse decision under section 43;
or
(d) if during those 20 workings days the
person applies for a review of the
54
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Act No. of
Part 3 Exempt Information s. 38
decision under section 44, until that
review determines that the information
should be provided.
38. Information relating to business affairs of public
authority
Information is exempt information
(a) if it is
(i) a trade secret of a public
authority; or
(ii) in the case of a public authority
engaged in trade or commerce,
information of a business,
commercial or financial nature
that would, if disclosed under this
Act, be likely to expose the
public authority to competitive
disadvantage; or
(b) if it consists of the result of scientific or
technical research undertaken by or on
behalf of a public authority, and
(i) the research could lead to a
patentable invention; or
(ii) the disclosure of the results in an
incomplete state would be likely
to expose a business, commercial
or financial undertaking
unreasonably to disadvantage; or
55
Right to Information Act 2009
Act No. of
s. 39 Part 3 Exempt Information
(iii) the disclosure of the results
before the completion of the
research would be likely to
expose the public authority or the
person carrying out the research
unreasonably to disadvantage; or
(c) if it is contained in
(i) an examination, a submission by
a student in respect of an
examination, an examiner's
report or any such similar record;
and
(ii) the use for which the record was
prepared has not been completed.
39. Information obtained in confidence
(1) Information is exempt information if its
disclosure under this Act would divulge
information communicated in confidence by or
on behalf of a person or government to a public
authority or Minister, and
(a) the information would be exempt
information if it were generated by a
public authority or Minister; or
(b) the disclosure of the information would
be reasonably likely to impair the ability
of a public authority or Minister to obtain
similar information in the future.
56
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Act No. of
Part 3 Exempt Information s. 40
(2) Subsection (1) does not include information
that
(a) was acquired by a public authority or a
Minister from a business, commercial or
financial undertaking; and
(b) relates to trade secrets or other matters of
a business, commercial or financial
nature; and
(c) was provided to a public authority or
Minister pursuant to a requirement of any
law.
40. Information on procedures and criteria used in
certain negotiations of public authority
Information is exempt information if it consists
of instructions for the guidance of officers of a
public authority on the processes to be followed
or the criteria to be applied
(a) in negotiations, including financial,
commercial and labour negotiations; or
(b) in the execution of contracts; or
(c) in the defence, prosecution and
settlement of cases; or
(d) in similar activities
relating to the financial, property or personnel
management and assessment interests of the
Crown or of a public authority.
57
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s. 41 Part 3 Exempt Information
41. Information likely to affect State economy
(1) Information is exempt information if the
information consists of details concerning any
proposed action or inaction by the Parliament,
the Government, a Minister or a public authority
in the course of, or for the purpose of, managing
the economy of the State or any part of the State
and its disclosure is likely to
(a) give any person an unfair advantage; or
(b) expose any person to an unfair
disadvantage.
(2) Information is exempt information if its
disclosure would reasonably be expected to have
a substantial adverse effect on the ability of the
Government or any public authority to manage
the economy of the State or any part of the State.
42. Information likely to affect cultural, heritage and
natural resources of the State
Information is exempt information if its
disclosure would be likely to
(a) threaten the survival of a rare or
endangered species of flora or fauna; or
(b) prejudice any measures being taken, or
proposed to be taken, for the
management or protection of a rare or
endangered species of flora or fauna; or
58
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Act No. of
Part 3 Exempt Information s. 42
(c) have an adverse effect on a site or area of
scientific, cultural or historical
significance; or
(d) prejudice any measures being taken, or
proposed to be taken, for the
management or protection of a site or
area of scientific, cultural or historical
significance provided such measures
would not themselves have any of the
effects referred to in paragraph (a), (b) or
(c).
59
Right to Information Act 2009
Act No. of
s. 43 Part 4 Review of Decisions
PART 4 REVIEW OF DECISIONS
43. Internal review
(1) If a decision in respect of an application made to
a public authority for information has been made
by a delegated officer, the applicant may, within
20 working days after notice of the decision is
given to the applicant in accordance with
section 22, apply to the principal officer of the
public authority for a review of the decision.
(2) If
(a) a decision to provide information relating
to the personal affairs of a person
referred to in section 36 has been made
by a delegated officer; and
(b) notice of the decision has been given to
an external party in accordance with
section 36(3)
the external party may within 10 working days
of the receipt of the notice apply to the principal
officer of the public authority for a review of the
decision.
(3) If
(a) a decision to provide information that is
likely to expose an external party to
competitive disadvantage has been made
by a delegated officer under section 37;
and
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(b) notice of the decision has been given to
the external party in accordance with
section 37(3)
the external party may within 10 working days
of the receipt of the notice apply to the principal
officer of the public authority for a review of the
decision.
(4) If an application for a review of a decision is
made to the principal officer in accordance with
subsection (1), (2) or (3), the principal officer
must as soon as practicable
(a) review the decision and make a fresh
decision; or
(b) arrange for a delegated officer, other than
the delegated officer who made the
decision, to review the decision and
make a fresh decision.
(5) A decision on a review under this section in
respect of an application made under section 13
is to be given in the same manner as a decision
in respect of the original application.
44. Application for external review
(1) A person or external party may apply to the
Ombudsman under this section for a review of a
decision in relation to which section 43(1), (2) or
(3) applies if
(a) the person or external party has made an
application for internal review under
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section 43(1), (2) or (3) in relation to the
decision; and
(b) either
(i) the person or external party has
been informed of the result of the
review; or
(ii) 20 working days have elapsed
since the application was made.
(2) The application referred to in subsection (1)
must be made within 20 working days of an
event referred to in subsection (1)(b).
45. Other applications for review
(1) A person who has applied for information in
accordance with section 13 may also apply to the
Ombudsman for a review of a decision if
(a) the decision which may otherwise be the
subject of an application for an internal
review under section 43 has been made
by a Minister or principal officer of a
public authority and as a consequence the
applicant cannot make an application
under section 43; or
(b) a Minister or public authority has made a
decision that the information requested
was not in existence on the day the
application was made; or
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(c) a Minister or public authority has made a
decision to give access other than in the
form requested by the applicant, except
where to do so would breach copyright;
or
(d) a Minister or public authority has
decided that the information requested is
not in the possession of the Minister or
public authority; or
(e) following a decision being made by a
Minister or public authority, the
applicant believes, on reasonable
grounds, that there is an insufficiency in
the searching for the information by the
Minister or public authority; or
(f) notice of a decision on an application
under section 13 has not been received
by the applicant and the period specified
in, or calculated under, section 15 has
elapsed.
(2) If person has applied for information in
accordance with section 13, another person may
apply to the Ombudsman for review if
(a) a Minister or public authority has
decided not to consult the person under
section 36(2) or section 37(2) and the
person believes that he or she is a person
who was required to be consulted; or
(b) a decision has been made on a review
under section 43 and a person, other than
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the person who applied for the review, is
adversely affected by the decision.
(3) If a notice of a decision has been given under
this Act, an application referred to in
subsection (1) must be made within 20 working
days of the day on which the applicant received
notice of the decision.
46. Review where decisions delayed
(1) If
(a) an application has been made to a public
authority or Minister under section 13;
and
(b) the period provided in section 15 has
elapsed; and
(c) notice of a decision on the application
has not been received by the applicant
the principal officer of the public authority or the
Minister is, for the purpose of enabling an
application to be made to the Ombudsman under
section 45, to be taken to have made, on the last
day of the relevant period, a decision refusing to
grant the application.
(2) If
(a) by virtue of this section an application
has been made to the Ombudsman under
section 45 but the Ombudsman has not
made a decision on the application; and
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(b) a decision, other than a decision to grant
the request, is given by the public
authority or Minister
the Ombudsman may, at the request of the
applicant, treat the application as extending to an
application for review of that decision in
accordance with section 45.
(3) Before further considering an application made
under section 45 by virtue of this section, the
Ombudsman may, on the application of the
Minister or principal officer of the public
authority concerned, allow the Minister or public
authority further time to deal with the request.
(4) The Ombudsman may allow a public authority
or a Minister further time in accordance with
subsection (3), subject to such conditions as the
Ombudsman thinks fit.
47. Powers of Ombudsman
(1) The Ombudsman has the following powers when
considering an application for review:
(a) to decide on the form and content of an
application for review;
(b) to decide on the process for dealing with
the review;
(c) to examine witnesses;
(d) to administer an oath or affirmation
before examination of a witness;
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(e) to direct a decision be made by a public
authority or Minister if a decision has not
been made within the time specified in,
or calculated under, section 15;
(f) to direct an internal review, if one has not
already been completed;
(g) to identify opportunities for early
resolution, including conciliation;
(h) to promote settlement of the review
application;
(i) to decide the parties involved in the
review;
(j) to make any enquiries necessary to
determine the review or to decide if to
proceed to review;
(k) to decide any matter in relation to the
original application for assessed
disclosure that could be decided by the
public authority or Minister to whom the
application was made;
(l) to decline an application for review that
is vexatious, lacks substance or is not
actively progressed by the applicant;
(m) to decline to continue to review an
application where the applicant fails to
comply with the directions of the
Ombudsman in connection with the
progress of the review;
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(n) to direct a public authority to provide
better reasons for a decision, within a
period of 10 working days, including if
necessary a schedule of information
relevant to the application;
(o) to give direction on the procedure to be
followed on review;
(p) to direct that his or her decision is to be
implemented by the public authority
within a period of 20 working days or
such lesser period determined by the
Ombudsman;
(q) to give directions to a party to a review,
related to the conduct of the review.
(2) The Ombudsman
(a) has full and free access to the records of
a public authority or Minister that are
related to an application for review and
may require that access to be in a
particular form; and
(b) may make application to the Supreme
Court on a question of law.
(3) The Ombudsman does not have power to
investigate a matter under the Ombudsman Act
1978 if that matter could be the subject of a
review by the Ombudsman under this Part.
(4) Where the Ombudsman is determining a matter
brought by an applicant, the public authority or
Minister concerned has the onus to show that the
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information should not be disclosed and it is
open to the Ombudsman to determine the
outcome of a review on the basis that the onus is
not discharged.
(5) Where an external party seeks review of a
decision by a public authority or Minister to
disclose personal or business information of that
external party, the external party has the onus to
show that there are grounds that the information
should not be disclosed and it is open to the
Ombudsman to overturn a decision if that onus is
not discharged.
(6) The Ombudsman is to
(a) use the powers in this section to resolve
an application for review as soon as
practicable after receipt of the
application; and
(b) if an application cannot be resolved,
ensure that his or her decision on an
application for review is made as soon as
practicable.
48. Decisions of Ombudsman
(1) If the Ombudsman intends to make a decision in
respect of a review
(a) that is adverse to a public authority or
Minister, the Ombudsman must make
available a draft of that decision to the
public authority or Minister and seek
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input from that public authority or
Minister before finalising the decision; or
(b) in any other case, the Ombudsman may
make available that decision to interested
parties and seek input from the parties
before finalising the decision.
(2) Where a decision has been finalised, the
Ombudsman may only reconsider it to correct an
accidental mistake or omission.
(3) When a decision in respect of a review has been
finalised, the Ombudsman is to provide a written
copy of that decision and a statement of the
reasons for the decision to each of the parties to
the review.
(4) The Ombudsman
(a) must not include in any decision or
statement of reasons any information
which is exempt information; and
(b) is not to confirm or deny the existence of
exempt information in any decision or
statement of reasons.
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PART 5 MISCELLANEOUS
49. Guidelines and advice
(1) The Ombudsman is to issue and maintain
guidelines relating to
(a) the process of disclosing information
under all four types of information
disclosure referred to in section 12; and
(b) the factors to be considered when
determining to refuse an application
under section 20; and
(c) any other matters he or she considers
necessary.
(2) The Ombudsman may, of his or her own motion
or on the request of a Minister or principal
officer, provide oral or written advice to a public
authority or Minister on the operation of this
Act.
(3) The Ombudsman is to issue and maintain a
manual related to the operation of this Act.
(4) The Ombudsman is to make the guidelines and
manual issued under this section available to the
public.
(5) The Ombudsman may publish a decision that he
or she makes in respect of a review and the
statement of reasons related to that decision.
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50. Offences
(1) A person must not deliberately obstruct or
unduly influence a principal officer of a public
authority, a Minister, a delegated officer or the
Ombudsman and his or her staff in the exercise
of the power to make decisions in accordance
with this Act.
Penalty: Fine not exceeding 50 penalty units.
(2) A person must not deliberately fail to disclose
information which is the subject of an
application for an assessed disclosure of
information, in the circumstances where the
information is known to the person to exist,
other than where non-disclosure is permitted in
accordance with this Act or another Act.
Penalty: Fine not exceeding 50 penalty units.
51. Protection against actions for defamation or breach
of confidence
(1) Where information has been provided and the
provision of that information
(a) was required or permitted by this Act; or
(b) was authorised by a Minister, a principal
officer or a delegated officer in the bona
fide belief that the information was
required to be provided in accordance
with this Act
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an action for defamation or breach of confidence
does not lie against the Crown, a public
authority, a Minister or an officer by reason of
the provision or the authorising of the provision
of that information, and an action for defamation
or breach of confidence in respect of any
publication involved in, or resulting from, the
provision of that information does not lie against
the author of the information or any other person
by reason of that author or other person having
supplied the information to a public authority or
Minister.
(2) The provision of information (including exempt
information) in consequence of a request made
under this Act does not constitute, for the
purposes of the law relating to defamation or
breach of confidence, an authorisation or
approval for the publication of that information
by the person to whom the information was
provided.
52. Protection in respect of criminal offences under
other Acts
Where information has been provided and the
provision of that information
(a) was required or permitted by this Act; or
(b) was authorised by a Minister or an
officer having authority, in accordance
with section 21, to make decisions in
respect of requests for information, made
in accordance with this Act, in the bona
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fide belief that the information was
required to be provided in accordance
with this Act
neither the person authorising the provision of
the information nor any other person concerned
in providing the information is guilty of a
criminal offence by reason only of the provision
or the authorising of the provision of the
information.
53. Reporting
(1) The Secretary of the Department must, as soon
as practicable after the end of each financial
year, prepare a report on the administration of
this Act showing, in particular
(a) the number of applications made under
Part 2 and the public authorities or
Ministers that received the applications;
and
(b) the number of applications under Part 2
that were refused and the provisions of
this Act under which they were refused;
and
(c) the number of applications under this Act
where the information requested was
exempt information or part of the
information was exempt information and
the provision under which it was exempt;
and
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(d) the number of applications for internal
review under section 43 and the results
of those applications; and
(e) a list of the Acts and sections of those
Acts which exempt information or public
authorities from the provisions of this
Act; and
(f) the number of applications for review
made to the Ombudsman under Part 4
and the results of those applications.
(2) The Secretary of the Department must give the
report prepared in accordance with
subsection (1) to the Minister who must table it
in both Houses of Parliament within 10 sitting-
days of its receipt.
(3) The Ombudsman is to provide a report to
Parliament about the operation of this Act and
any related matters he or she decides are
relevant.
(4) The report referred to in subsection (3) is to be
contained in the annual report of the
Ombudsman under section 30 of the
Ombudsman Act 1978.
54. Regulations
(1) The Governor may make regulations for the
purposes of this Act.
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(2) The regulations may be made so as to apply
differently according to such factors as are
specified in the regulations.
(3) The regulations may
(a) provide that a contravention of any of the
regulations is an offence; and
(b) in respect of such an offence, provide for
the imposition of a fine not exceeding 50
penalty units.
(4) The regulation may authorise any matter to be
from time to time determined, applied or
regulated by any person or body specified in the
regulations.
55. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990
(a) the administration of this Act is assigned
to the Minister for Justice; and
(b) the department responsible to that
Minister in relation to the administration
of this Act is the Department of Justice.
56. Legislation repealed
The legislation specified in Schedule 4 is
repealed.
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57. Legislation rescinded
The legislation specified in Schedule 5 is
rescinded.
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SCHEDULE 1 MATTERS RELEVANT TO
ASSESSMENT OF PUBLIC INTEREST
Sections 30(3) and 33(2)
1. The following matters are the matters to be
considered when assessing if disclosure of
particular information would be contrary to the
public interest:
(a) the general public need for government
information to be accessible;
(b) whether the disclosure would contribute
to or hinder debate on a matter of public
interest;
(c) whether the disclosure would inform a
person about the reasons for a decision;
(d) whether the disclosure would provide the
contextual information to aid in the
understanding of government decisions;
(e) whether the disclosure would inform the
public about the rules and practices of
government in dealing with the public;
(f) whether the disclosure would enhance
scrutiny of government decision-making
processes and thereby improve
accountability and participation;
(g) whether the disclosure would enhance
scrutiny of government administrative
processes;
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(h) whether the disclosure would promote or
hinder equity and fair treatment of
persons or corporations in their dealings
with government;
(i) whether the disclosure would promote or
harm public health or safety or both
public health and safety;
(j) whether the disclosure would promote or
harm the administration of justice,
including affording procedural fairness
and the enforcement of the law;
(k) whether the disclosure would promote or
harm the economic development of the
State;
(l) whether the disclosure would promote or
harm the environment and or ecology of
the State;
(m) whether the disclosure would promote or
harm the interests of an individual or
group of individuals;
(n) whether the disclosure would prejudice
the ability to obtain similar information
in the future;
(o) whether the disclosure would prejudice
the objects of, or effectiveness of a
method or procedure of, tests,
examinations, assessments or audits
conducted by or for a public authority;
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(p) whether the disclosure would have a
substantial adverse effect on the
management or performance assessment
by a public authority of the public
authority's staff;
(q) whether the disclosure would have a
substantial adverse effect on the
industrial relations of a public authority;
(r) whether the disclosure would be contrary
to the security or good order of a prison
or detention facility;
(s) whether the disclosure would harm the
business or financial interests of a public
authority or any other person or
organisation;
(t) whether the applicant is resident in
Australia;
(u) whether the information is wrong or
inaccurate;
(v) whether the information is extraneous or
additional information provided by an
external party that was not required to be
provided;
(w) whether the information is information
related to the business affairs of a person
which if released would cause harm to
the competitive position of that person;
(x) whether the information is information
related to the business affairs of a person
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which is generally available to the
competitors of that person;
(y) whether the information is information
related to the business affairs of a person,
other than a public authority, which if it
were information of a public authority
would be exempt information.
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SCHEDULE 2 MATTERS IRRELEVANT TO
ASSESSMENT OF PUBLIC INTEREST
Sections 30(4) and 33(3)
1. The following matters are irrelevant when
assessing if disclosure of particular information
would be contrary to the public interest:
(a) the seniority of the person who is
involved in preparing the document or
who is the subject of the document;
(b) that disclosure would confuse the public
or that there is a possibility that the
public might not readily understand any
tentative quality of the information;
(c) that disclosure would cause a loss of
confidence in the government;
(d) that disclosure might cause the applicant
to misinterpret or misunderstand the
information contained in the document
because of an omission from the
document or for any other reason.
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SCHEDULE 3 MATTERS RELEVANT TO
ASSESSMENT OF REFUSING APPLICATION
Sections 10(1)(b) and Section 19(1)
1. The following matters are matters that must be
considered when assessing if the processing of
an application for assessed disclosure of
information would result in a substantial and
unreasonable diversion of resources:
(a) the terms of the request, especially
whether it is of a global kind or a
generally expressed request, and in that
regard whether the terms of the request
offer a sufficiently precise description to
permit the public authority or Minister,
as a practical matter, to locate the
document sought within a reasonable
time and with the exercise of reasonable
effort;
(b) whether the demonstrable importance of
the document or documents to the
applicant might be a factor in
determining what in the particular case
are a reasonable time and a reasonable
effort;
(c) more generally whether the request is a
reasonably manageable one, giving due,
but not conclusive, regard to the size of
the public authority or Minister and the
extent of its resources available for
dealing with applications;
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(d) the public authority's or Minister's
estimate as to the number of sources of
information affected by the request, and
by extension the volume of information
and the amount of officer-time, and the
salary cost;
(e) the timelines binding the public authority
or Minister;
(f) the degree of certainty that can be
attached to the estimate that is made as to
sources of information affected and hours
to be consumed, and in that regard
importantly whether there is a real
possibility that processing time might
exceed to some degree the estimate first
made;
(g) the extent to which the applicant has
made other applications to the public
authority or Minister in respect of the
same or similar information or has made
other applications across government in
respect of the same or similar
information, and the extent to which the
present application might have been
adequately met by those previous
applications;
(h) the outcome of negotiations with the
applicant in attempting to refine the
application or extend the timeframe for
processing the application;
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(i) the extent of the resources available to
deal with the specified application.
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SCHEDULE 4 LEGISLATION REPEALED
Section 56
Freedom of Information Act 1991 (No. 22 of 1991)
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SCHEDULE 5 LEGISLATION RESCINDED
Section 57
Freedom of Information Regulations 2001 (No. 39 of 2001)
Freedom of Information (Fees) Regulations 2004 (No. 130 of
2004)
86 Government Printer, Tasmania