The Law Handbook 2024

Chapter 12.3: Freedom of information law 1129 Part IV of the FoI Act (Cth). Part IV provides for two different kinds of exemptions: 1 exempt documents; and 2 conditionally exempt documents. Exempt documents Exempt documents are more difficult to access. If a document meets the criteria for one of the following categories, the relevant agency or minister is not required to give access to the document, regardless of the public interest assessment (s 11A(4)). Exempt documents include: • documents affecting national security, defence or international relations (s 33); • cabinet documents (s 34); • documents affecting law enforcement and protection of public safety (s 37); • documents to which secrecy provisions of enactments apply (s 38); • documents subject to legal professional privilege (s 42); • documents containing material obtained in confidence (s 45); • Parliamentary Budget Office documents (s 45A); • documents the disclosure of which would be contempt of a parliament, court, tribunal or royal commission (s 46); • documents disclosing trade secrets or commercially valuable information (s 47); and • electoral rolls and related documents. Where it is possible and reasonable for an agency or minister to prepare an edited copy of a document in redacted form (i.e. edited to obscure exempt or irrelevant information that cannot be disclosed), the agency or minister must do so and give the applicant access to the edited copy (s 22). Conditionally exempt documents In contrast, if a document meets the criteria for one of the following categories, the relevant agency or minister must give access to the document unless, in the circumstances, access to the document would, on balance, be contrary to the public interest (s 11A(5)). There is therefore a presumption in favour of access to conditionally exempt documents. Conditionally exempt documents include docu­ ments relating to: • Commonwealth–state relations (s 47B); • deliberative processes (s 47C); • financial or property interests of the Commonwealth (s 47D); • certain agency operations, such as an agency’s operations, audit, examination or employee management (s 47E); • personal privacy (s 47F); • business or professional affairs (s 47G); • research conducted by specified agencies (s 47H); and • Australia’s economy (s 47J). Section 11B sets out the factors that apply for the purpose of working out whether access to a conditionally exempt document would be contrary to the public interest. The factors favouring access to the document include whether the disclosure would: • promote the objects of the FoI Act (Cth), including all the matters set out in sections 3 and 3A; • inform debate on a matter of public importance; • promote effective oversight of public expenditure; and • allow a person to access their own personal information. The following factors, among others, must not be taken into account: • the seniority of the author of the document; • that disclosure would be embarrassing to the Australian Government or cause a loss of confidence in the Australian Government; • that disclosure could result in any person mis­ interpreting or misunderstanding the document; and • that disclosure could result in confusion or unnecessary debate. Under section 11B(5), agencies and ministers must comply with any guidelines issued by the AI Commissioner in relation to the public interest test. Fees and charges There is no fee for asking to access documents. However, agencies and ministers can charge fees for processing requests to access documents (s 29). These costs are set out in the Freedom of Information (Charges) Regulations 2019 (Cth) (‘ FoI Regulations (Cth)’ ) and are summarised below.