DFAT guidelines for decision makers
Freedom of Information Act 1982
- FOI and Privacy Law Section (FPL) is available to provide advice on the processing of individual FOI requests and the FOI Act.
- Significant amendments to the FOI Act entered into force in November 2010 with the policy objective of promoting greater openness in government.
- The starting point should be a presumption in favour of giving access to as much information in the documents as possible. However, we also have statutory obligations under the FOI Act to exempt from release sensitive material of various kinds, such as material which could reasonably be expected to damage Australia’s international relations.
- Use your knowledge of the subject area to identify documents that contain particularly sensitive information. You should then consider whether any exemptions in the FOI Act apply to all or part of those documents. Unless it is clear that the entire document should be exempt from release, you should analyse the document "line-by-line" and only exempt the parts of the document which fall within the grounds for exemption in the FOI Act.
- The "type" of document (e.g. cable, ministerial submission) and its classification are irrelevant when considering it for release under the FOI Act. Focus instead on the content of the document and what material within it is sensitive and should be exempt from release. Note that release of a document under FOI means that it is declassified and becomes a public document. For FOI requests received after 1 May 2011, the Department will publish the documents in the form they are released (i.e. with all exempt material removed) on its internet site. The only exceptions are documents that contain information personal or of commercial value to the FOI applicant themselves.
- Consult widely, and keep a record of who you consult and what you discuss.
- Annotate the documents to indicate which parts of the documents are exempt and under what section in the FOI Act they are exempt. Provide the FPL Section with a minute that explains your decisions and the reasons for them.
- When media or parliamentary interest is anticipated, FPL Section will coordinate a separate process with the relevant line area and the Parliamentary and Media Branch to ensure that the relevant parties are informed.
- Deadlines are critical. The deadlines are determined by the statutory timeframes within the FOI Act. Where an extension is likely to be needed, please discuss with FPL as soon as possible to see whether an available statutory extension may apply in the circumstances.
DFAT FOI Process
Role of the FOI and Privacy Law Section
1. The FOI and Privacy Law Section in DLB (FPL) receives and manages FOI applications that are submitted to DFAT. The FPL Section:
- Undertakes initial discussions with the applicant to clarify the scope of FOI requests.
- tasks relevant line areas (including posts by cable) to search for and provide documents falling within the scope of the request
- handles charges payable by the applicant
- organises the documents that have been provided by line areas as falling within the scope of the request
- identifies the appropriate SES officer (usually a Branch Head) as decision maker
- provides him/her with the collated set of documents on which a decision must be made
- if there are missing documents from this set, conducts further searches
- provides advice on FOI process, handling and interpretation
- facilitates consultation with other agencies and third parties
- liaises with the Office of the Australian Information Commissioner regarding timelines and any reviews of decisions
- directly provides or obtains external legal advice if required
- prepares the documents in line with the decision taken by the decision-maker
- prepares schedules listing the documents and a letter notifying the applicant of the decision, including reasons for the decision.
- provides the schedules and letter to the decision maker for review and signature
- initiates and contributes to the preparation of a ministerial submission (where relevant) to advise of the impending release material that may generate media or parliamentary attention
- sends/emails the decision, schedules and documents to the applicant
- initiates the upload of released documents onto the DFAT internet site
Time within which decisions are made
2. The FPL Section will advise you of the date by which you should make your decision. This date arises from considering the statutory timelines contained in the FOI Act. If it appears unachievable, please contact the FPL Section as soon as possible, so that we can apply, if possible, for one of the statutory extensions available in certain circumstances.
3. It is advisable to consult within DFAT, including with senior staff, line areas and, where appropriate, posts, to gather information on the potential sensitivity that may arise should documents be released. Internal consultations (within DFAT) are to be undertaken directly by you as the decision-maker.
4. The FOI Act does not strictly require consultation with other agencies or foreign governments. However, it is good practice to consult other agencies or foreign governments with an interest in documents covered by a request – particularly as regards any documents which have been authored by other agencies of foreign governments. The FPL Section can facilitate these consultations for you. Please make an initial decision on the documents and then indicate clearly which documents you would like to consult each other agency on.
5. Where a document includes information that you consider is exempt under s34 of the Act (Cabinet and associated documents), the Department of Prime Minister and Cabinet must be consulted. Please notify the FPL Section as soon as possible if you consider that some information is exempt from release under s34 so this consultation with the Cabinet Secretariat can be facilitated.
6. For the purposes of the FOI Act, Ministers' Offices are considered as separate agencies from DFAT. Ministers' Offices play no role in the Department's FOI decision-making, unless there is a need to undertake a formal consultation with them under the FOI Act. This may occur, for example, where a document under consideration for release was authored by Ministerial Office staff.
7. You should keep a record of the people and the agencies with whom you consulted in making your decision. Should the decision be reviewed, this information will be relevant in presenting the Department's case.
8. If you are likely to decide to release information that includes personal information about a person other than the applicant, the business or professional affairs of a person or organisation or information about Commonwealth / State relations, you must (wherever reasonable) consult the affected body if they may reasonably wish to contend the document is exempt. FPL Section will do this on your behalf. Please make an initial decision on the documents and indicate clearly which documents you would like to consult each organisation regarding. Whether it is reasonable to consult the third party depends both on the nature of the information you are considering releasing and the practicality of consulting them. FPL Section can offer advice on these matters.
Classes and classification of documents
9. While the classification of documents may be a guide to the level of sensitivity of material, this is not in itself a basis for exempting documents under the FOI Act. The only available grounds for exemption are those set out in the FOI Act. The same goes for classes of documents – the mere fact that a document is a cable, or a ministerial submission, does not in itself justify exemption of the document in whole or in part.
Decision-making — independence of decision-making and exemption guidelines
10. While you should consult freely, you cannot be directed by any person to make a particular decision. The most important aspect of your decision is that it must demonstrably be your decision.
11. If your consultation uncovers serious unresolvable differences in opinion, or you feel unable to make an independent decision, you should consult with the FPL Section.
12. Included in the pack provided to you is a copy of the guidelines produced by the Office of the Australian Information Commissioner regarding the statutory exemptions in the FOI Act used as grounds for exempting the material in a document which cannot be released. If you seek additional explanation of how an exemption may be applied, please consult these guidelines or contact the FPL Section.
13. Note that exemptions are divided into two categories – non-conditional exemptions and conditional exemptions. For non-conditional exemptions, once the decision-maker has identified material which falls under the definition of that exemption, the material is exempt and there is no need to consider a separate public interest test. For conditional exemptions, once the decision-maker has identified material which falls under the definition of that conditional exemption, they must release that information to the applicant unless it would be contrary to the public interest to do so.
14. Commonly used non-conditional exemptions in relation to DFAT documents, which DFAT decision-makers should particularly familiarise themselves with, include:
- s33(a)(iii) (damage to international relations)
- s33(b) (information passed in confidence by a foreign government)
15. Commonly used conditional exemptions in relation to DFAT documents include:
- s47F (personal privacy)
- s47C (deliberative processes)
- s47E(d) (substantial adverse effect on the operations of an agency)
Marking up the documents and providing a minute
16. You should annotate clearly on each document any parts to be exempted from release. You should write on the document, or next to the relevant text, your reasons for exempting the text from release. You should include reference to the specific section of the FOI Act under which you are exempting text from release.
17. You should also provide FPL Section with a minute that explains your decisions and the reasons for them. The FPL Section will refer closely to your written reasons when drafting the decision letter and the statement of reasons. To assist with this process, the FPL Section will provide additional guidance at the time of appointment as decision-maker.
Requests from the Media and Parliamentarians
18. A number of the Department's FOI requests are made by representatives of the media and parliamentarians. Relevant ministerial offices will be informed of FOI releases that may generate media or Parliamentary attention by means of a ministerial submission. A key point to bear in mind is that Ministers' Offices play no part in the decision-making on the Department's FOI releases except where there is a reason to conduct a formal consultation under the FOI Act.
19. The FPL Section will provide detailed information on the process to be followed in preparing a ministerial submission regarding an impending FOI release at the appropriate time. The line area is responsible for signing the ministerial submission and for the bulk of the information provided. FPL and PMB will also provide some input to the content of the ministerial submission.
Review of your decision
20. If you are the original decision maker, the applicant can seek an internal review of your decision. If this happens, the Assistant Secretary, Domestic Legal Branch will appoint another SES officer, usually at SES Band 2 level, to make a fresh decision. While this is a 'de novo' decision, the internal review decision maker can in effect affirm or alter your original decision.
21. Additionally, the applicant can seek review of your decision by the Australian Information Commissioner, with or without having requested an internal review. Following review by the Australian Information Commissioner, the applicant can seek a further review in the Administrative Appeals Tribunal (AAT).
22. If you are an internal review decision maker, the applicant can seek a review of your decision by the AAT, but only with the agreement of the Australian Information Commissioner.
23. An applicant can complain to the Commonwealth Ombudsman at any time about perceived administrative faults in processing an application, such as excessive delays or refusal to act.
24. An applicant can complain to the Australian Information Commissioner at any time about the Department's performance of its functions or the exercise of powers under the FOI Act.