FREEDOM OF INFORMATION ACT 1982 - SECT 33 Document affecting personal privacy

FREEDOM OF INFORMATION ACT 1982 - SECT 33

    (1)     A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).

S. 33(2) amended by Nos 23/2017 s. 25(1), 11/2018 s. 35(1).

    (2)     Subject to subsection (2AB), (2AC) or (4), the provisions of subsection (1) do not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.

S. 33(2A) inserted by No. 57/1999 s. 6(1).

    (2A)     An agency or Minister, in deciding whether the disclosure of a document under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person, must take into account, in addition to any other matters, whether the disclosure of the information would, or would be reasonably likely to, endanger the life or physical safety of any person.

S. 33(2AB) inserted by No. 23/2017 s. 25(2).

    (2AB)     Without limiting subsection (2A), if—

S. 33(2AB)(a) amended by No. 11/2018 s. 45(1).

        (a)     the request is made to an agency that is an information sharing entity or an authorised Hub entity, or to a Minister for access to an official document of an agency that is an information sharing entity or an authorised Hub entity; and

        (b)     the document contains information relating to the personal affairs of the person making the request; and

        (c)     the person making the request is a person of concern, or a person who is alleged to pose a risk of committing family violence—

in deciding whether the disclosure would involve the unreasonable disclosure of information relating to the personal affairs of any person, the agency or Minister must also take into account whether the disclosure would increase the risk to a primary person's safety from family violence.

S. 33(2AC) inserted by No. 11/2018 s. 35(2).

    (2AC)     Without limiting subsection (2A), if—

S. 33(2AC)(a) amended by No. 11/2018 s. 45(2).

        (a)     the request is made to an agency that is an information sharing entity, an authorised Hub entity or a restricted information sharing entity or to a Minister for access to an official document of an agency that is an information sharing entity, an authorised Hub entity or a restricted information sharing entity; and

        (b)     the document contains information relating to the personal affairs of the person making the request—

in deciding whether the disclosure would involve the unreasonable disclosure of information relating to the personal affairs of any person, the agency or Minister must also take into account whether the disclosure would increase the risk to the safety of a child or group of children.

S. 33(2B) inserted by No. 20/2017 s. 16(1).

    (2B)     An agency or Minister, in deciding whether the disclosure of a document under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person, must—

        (a)     notify the person who is the subject of that information (or if that person is deceased, that person's next of kin) that the agency or Minister has received a request for access to the document; and

        (b)     seek that person's view as to whether disclosure of the document should occur; and

        (c)     state that if the person consents to disclosure of the document, or disclosure subject to deletion of information relating to the personal affairs of the person, the person is not entitled to apply to the Tribunal for review of a decision to grant access to that document.

S. 33(2C) inserted by No. 20/2017 s. 16(1).

    (2C)     Despite subsection (2B), an agency or Minister is not required to notify a person if—

        (a)     the notification would be reasonably likely to endanger the life or physical safety of that person, or cause that person undue distress, or is otherwise unreasonable in the circumstances; or

S. 33(2C)(ab) inserted by No. 23/2017 s. 28.

        (ab)     the person to be notified is a primary person, and the notification would be reasonably likely to increase the risk to that person's safety from family violence; or

        (b)     it is not practicable to do so.

S. 33(3) amended by No. 6/2012 s. 12(1), substituted by No. 20/2017 s. 16(2).

    (3)     If a request by a person other than a person referred to in subsection (2) is made to an agency or Minister for access to a document containing information relating to the personal affairs of any person (including a deceased person) and the agency or Minister decides to grant access to the document, the agency or Minister, if practicable, must notify the person who is the subject of that information (or that person's next of kin) of the—

        (a)     decision to grant access to the document; and

        (b)     right to make an application for review of the decision provided by section 50(3).

S. 33(3A) inserted by No. 20/2017 s. 16(2).

    (3A)     An agency or Minister is not required to notify a person who has consented to disclosure of a document, or a document with deletions, of the decision to disclose that document or document with deletions (as the case requires).

S. 33(4) amended by No. 23/1994 s. 118(Sch. 1 item 22.1), substituted by No. 2/2001 s. 101(2).

    (4)     If—

        (a)     a request is made to an agency or Minister for access to a document of the agency, or an official document of the Minister, that contains health information concerning the person making the request; and

        (b)     the principal officer or the Minister, as the case may be, believes on reasonable grounds that the provision of the health information would pose a serious threat to the life or health of the person—

the principal officer or Minister must not give access to the document so far as it contains that information and—

        (c)     the procedure set out in Division 3 of Part 5 of the Health Records Act 2001 applies as if the refusal of access were a refusal under section 26 of that Act; and

        (d)     the document is an exempt document.

S. 33(5) amended by Nos 10087 s. 3(1)(Sch.  1 item 91), 23/1994 s. 118(Sch. 1 item 22.2), 97/2005 s. 182(Sch. 4 item 22), 13/2010 s. 51(Sch. item 25).

    (5)     Where but for this subsection the principal officer of an agency to which the provisions of subsection (4) may apply would not be a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student), the agency shall appoint a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student) to be the principal officer of the agency for the purposes of subsection (4).

    (6)     Nothing in this Act shall be taken to require an agency or Minister to give information as to the existence or non-existence of a document of a kind referred to in subsection (1) where information as to the existence or non-existence of that document, if included in a document of an agency, would cause the last-mentioned document to be an exempt document by virtue of this section.

S. 33(7) amended by No. 10150 s. 3(1).

    (7)     Nothing in this section shall be construed so as to affect the procedures for access to adoption records contained in the Adoption Act 1984 .

S. 33(8) inserted by No. 10163 s. 34 (as amended by No. 86/1987 s. 4(6)), amended by No. 10262 s. 4, substituted by No. 38/1999 s. 4(1), amended by No. 76/2008 s. 155.

    (8)     Nothing in this section shall be construed so as to affect the procedures for access to information kept in a register maintained under Division 1 of Part 6 of the Assisted Reproductive Treatment Act 2008 .

S. 33(9) inserted by No. 38/1999 s. 4(2), substituted by No. 57/1999 s. 6(2).

    (9)     In this section—

S. 33(9) def. of information relating to the personal affairs of any person amended by No. 23/2017 s. 25(3)(a).

"information relating to the personal affairs of any person" includes information—

        (a)     that identifies any person or discloses their address or location; or

        (b)     from which any person's identity, address or location can reasonably be determined;

S. 33(9) def. of information sharing entity inserted by No. 11/2018 s. 35(4).

"information sharing entity"—

        (a)     in subsection (2AB), has the same meaning as in the Family Violence Protection Act 2008 ; and

        (b)     in subsection (2AC), has the same meaning as in the Child Wellbeing and Safety Act 2005 ;

S. 33(9) def. of person of concern inserted by No. 23/2017 s. 25(3)(b).

person of concern has the meaning given in section 144B of the Family Violence Protection Act 2008 ;

S. 33(9) def. of primary person inserted by No. 23/2017 s. 25(3)(b), amended by No. 11/2018 s. 35(3).

primary person has the meaning given in section 144E of the Family Violence Protection Act 2008 ;

S. 33(9) def. of restricted information sharing entity inserted by No. 11/2018 s. 35(4).

"restricted information sharing entity" has the same meaning as in the Child Wellbeing and Safety Act 2005 .

S. 33A inserted by No. 20/2017 s. 17, amended by No. 23/2017 s. 29 (ILA s. 39B(1)).