FOI Disclosure Log Exemption

The Office of the Australian Information Commissioner has launched a public consultation - be quick or you'll miss it - on the renewal of the Disclosure Log Determination No. 2011-1 (Exempt Documents) under s 11C(2) of the Freedom of Information Act 1982 (Cth). The determination expires on 16 October 2013; responses are to be with the OAIC by 3 October.

Under the Determination Commonwealth agencies and Ministers do not have to publish on their disclosure logs information in a document that

• was an exempt document at the time that access was given to the applicant by the agency or Minister
• the agency or Minister would have decided was an exempt document at the time that access was given to the applicant, if the request for that document had been received from a person other than the applicant. 

In essence an agency or Minister may decide that it is appropriate to provide access to a particular applicant (eg information about the applicant) but that it would be unreasonable to publish the same document more widely.

An example an agency may have released an exempt document to a particular applicant in connection with a research project, in connection with legal proceedings in which the applicant is involved, or because the confidential nature of information in a document would not be jeopardised by selective release.

The Determination also recognises that the exempt status of a document can depend on the identity of the applicant. For example, a secrecy provision allows release of a document to a particular recipient under the FOI Act but would prohibit its release to a different recipient, with the agency or Minister accordingly choosing not to publish the document on the disclosure log.

The OAIC seeks responses to the following questions -

• Do you think the determination has been effective?
• If not, how could it be made more effective?
• Do you think the determination had any unintended consequences?
• Is there a way to mitigate those consequences?
• Should the determination be expanded or narrowed in any way?
• Please explain how and why you think it should be expanded or narrowed.

As an indication of regulatory incapacity the OAIC asks agencies and ministers -

• Have you had regard to the Determination when publishing or deciding not to publish documents to your disclosure log?
• How often has the determination been relevant to your publication decisions?
• to comment on their disclosure log record keeping, eg

• is an internal register maintained of all disclosure log decisions, 
• does the agency record decisions not to publish a document on the disclosure log and the reasons for that decision, 
• should additional information about disclosure log activity be collected by the OAIC?

The OAIC 2012-13 annual report will include statistics from agencies and ministers on disclosure log activity, for example, the number of documents accessible from disclosure logs, and the number of website visits to disclosure logs.