More from Australian Information Commissioner Designate Professor John McMillan in this report today by Sean Parnell in The Australian- a surge of Freedom of Information access applications are expected when the Commonwealth reforms commence on 1 November ( abolition of the application fee will no doubt be a contributing factor for those that know about it, but still no sign of the regulation with details of the new charge regime); the level of preparedness among agencies is mixed, with the larger agencies in particular well prepared; and his office expects to be hit with numerous review applications from the middle of next month.
Parnell reports that journalists at the Commissioner's briefing took a special interest in the disclosure logs, part of broader publication requirements that will operate from 1 May, concerned that publication within 10 days of documents released under FOI would " devalue (individual journalists') ideas, efforts and financial investments in FOI."
While the 1 November issues no doubt preoccupy thinking at the moment, there are aspects of this publication requirement that remain to be clarified in the next six months. One, the new Section 8 states ((2)(g)) the obligation extends to documents to which an agency "routinely gives access in response to requests" subject to the exclusion of certain categories of information of a business or private nature and ((3)) information that the Information Commissioner determines "would be unreasonable to publish." No determination has been issued to date.( I won't go on about this but the Commissioner has no powers to require publication of anything that goes beyond what is stipulated in the act, and a raft of other things including contracts and grants- at least subject to parliamentary and administrative directions-could and should have been included.)
Two, the significance if any of differences in the wording of the two relevant sections of the act. Section 11C headed "Publication of information in accessed documents" doesn't refer, as section 8 does, to publication of information in documents "routinely given", but to information (presumably any) where an agency or Minister has given a person access in response to an access application. The former seems narrower than the latter, which goes beyond the similar schemes introduced and operating in the reform states. Those disclosure log requirements are limited to publication of information released that is or may be of interest to the community generally. They don't appear to have given rise to the problem raised in Parnell's article although it's early days for the NSW and Tasmanian schemes, and Hobart and Brisbane are one paper cities. Presumably a larger pool will be keen to pick up any morsels released to someone else when this becomes a requirement under Commonwealth law.
Two, the significance if any of differences in the wording of the two relevant sections of the act. Section 11C headed "Publication of information in accessed documents" doesn't refer, as section 8 does, to publication of information in documents "routinely given", but to information (presumably any) where an agency or Minister has given a person access in response to an access application. The former seems narrower than the latter, which goes beyond the similar schemes introduced and operating in the reform states. Those disclosure log requirements are limited to publication of information released that is or may be of interest to the community generally. They don't appear to have given rise to the problem raised in Parnell's article although it's early days for the NSW and Tasmanian schemes, and Hobart and Brisbane are one paper cities. Presumably a larger pool will be keen to pick up any morsels released to someone else when this becomes a requirement under Commonwealth law.
If it's any solace to Parnell and other journalists, publication will be required within 10 working days.
The text of sections 8 and 11C:
8 Information to be published—what information?
Agency plans
(1) An agency must prepare a plan showing the following:
(a) what information the agency proposes to publish for the purposes of this Part;
(b) how, and to whom, the agency proposes to publish information for the purposes of this Part;
(c) how the agency otherwise proposes to comply with this Part.
Agency plans
(1) An agency must prepare a plan showing the following:
(a) what information the agency proposes to publish for the purposes of this Part;
(b) how, and to whom, the agency proposes to publish information for the purposes of this Part;
(c) how the agency otherwise proposes to comply with this Part.
Information that must be published
(2) The agency must publish the following information:
(a) the plan prepared under subsection (1);
(b) details of the structure of the agency’s organisation (for example, in the form of an organisation chart);
(2) The agency must publish the following information:
(a) the plan prepared under subsection (1);
(b) details of the structure of the agency’s organisation (for example, in the form of an organisation chart);
(c) as far as practicable, details of the functions of the agency, including its decision-making powers and other powers affecting members of the public (or any particular person or
entity, or class of persons or entities);
(d) details of appointments of officers of the agency that are made under Acts (other than APS employees within the meaning of the Public Service Act 1999);
(e) the information in annual reports prepared by the agency that are laid before the Parliament;
(f) details of arrangements for members of the public to comment on specific policy proposals for which the agency is responsible, including how (and to whom) those comments
may be made;
(g) information in documents to which the agency routinely gives access in response to requests under Part III (access to documents), except information of the following kinds:
(i) personal information about any individual, if it would be unreasonable to publish the information;
(ii) information about the business, commercial, financial or professional affairs of any person, if it would be unreasonable to publish the information;
(iii) other information of a kind determined by the Information Commissioner under subsection (3), if it would be unreasonable to publish the information;
(h) information held by the agency that is routinely provided to the Parliament in response to requests and orders from the Parliament;
(i) contact details for an officer (or officers) who can be contacted about access to the agency’s information or documents under this Act;
(j) the agency’s operational information (see section 8A).
Note: If operational information is not published in accordance with this section, a person must not be subjected to any prejudice as a result (see section 10).
(3) The Information Commissioner may, by legislative instrument, make a determination for the purposes of subparagraph (2)(g)(iii).
Other information
(4) The agency may publish other information held by the agency.
entity, or class of persons or entities);
(d) details of appointments of officers of the agency that are made under Acts (other than APS employees within the meaning of the Public Service Act 1999);
(e) the information in annual reports prepared by the agency that are laid before the Parliament;
(f) details of arrangements for members of the public to comment on specific policy proposals for which the agency is responsible, including how (and to whom) those comments
may be made;
(g) information in documents to which the agency routinely gives access in response to requests under Part III (access to documents), except information of the following kinds:
(i) personal information about any individual, if it would be unreasonable to publish the information;
(ii) information about the business, commercial, financial or professional affairs of any person, if it would be unreasonable to publish the information;
(iii) other information of a kind determined by the Information Commissioner under subsection (3), if it would be unreasonable to publish the information;
(h) information held by the agency that is routinely provided to the Parliament in response to requests and orders from the Parliament;
(i) contact details for an officer (or officers) who can be contacted about access to the agency’s information or documents under this Act;
(j) the agency’s operational information (see section 8A).
Note: If operational information is not published in accordance with this section, a person must not be subjected to any prejudice as a result (see section 10).
(3) The Information Commissioner may, by legislative instrument, make a determination for the purposes of subparagraph (2)(g)(iii).
Other information
(4) The agency may publish other information held by the agency.
Functions and powers
(5) This section applies to a function or power of an agency whether or not the agency has the function or power under an enactment.
Note 1: See section 8C for restrictions on the requirement to publish this
information.
Note 2: The agency must have regard to the objects of this Act and guidelines
issued by the Information Commissioner in performing functions, and
exercising powers, under this section (see section 9A).
(5) This section applies to a function or power of an agency whether or not the agency has the function or power under an enactment.
Note 1: See section 8C for restrictions on the requirement to publish this
information.
Note 2: The agency must have regard to the objects of this Act and guidelines
issued by the Information Commissioner in performing functions, and
exercising powers, under this section (see section 9A).
......
11C Publication of information in accessed documents
Scope
(1) This section applies to information if an agency or Minister gives a person access to a document under section 11A containing the information, except in the case of any of the following:
(a) personal information about any person, if it would be unreasonable to publish the information;
(b) information about the business, commercial, financial or professional affairs of any person, if it would be unreasonable to publish the information;
(c) other information of a kind determined by the Information Commissioner under subsection (2), if it would be unreasonable to publish the information;
(d) any information, if it is not reasonably practicable to publish the information under this section because of the extent of any modifications to a document (or documents) necessary to delete information mentioned in paragraphs (a) to (c).
(2) The Information Commissioner may, by legislative instrument, make a determination for the purposes of paragraph (1)(c).
Publication
(3) The agency, or the Minister, must publish the information to
members of the public generally on a website by: (a) making the information available for downloading from the website; or
(b) publishing on the website a link to another website, from which the information can be downloaded; or
(c) publishing on the website other details of how the information may be obtained.
(4) The agency may impose a charge on a person for accessing the
information only if:
(a) the person does not directly access the information by downloading it from the website (or another website); and
(b) the charge is to reimburse the agency for a specific reproduction cost, or other specific incidental costs, incurred in giving the person access to that particular information.
(5) If there is a charge for accessing the information, the agency or Minister must publish details of the charge in the same way as the information is published under this section.
Time limit for publication
(6) The agency or Minister must comply with this section within 10 working days after the day the person is given access to the document.
(7) In this section: working day means a day that is not:
(a) a Saturday; or
(b) a Sunday; or
(c) a public holiday in the place where the function of publishing the information under this section is to be performed.
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