ACT Amendments to Freedom of Information Act 2016 Commence

On 15 October, the Freedom of Information Amendment Act 2019 (ACT) (‘the Amending Act’) commenced by written notice of the Minister. The Amending Act was passed by the Legislative Assembly on 26 September 2019. The Freedom of Information Amendment Bill 2019 (ACT) was initially presented to the Legislative Assembly by the Attorney-General, Gordon Ramsay, for the purpose of amending the Freedom of Information Act 2016 (ACT) (‘the FI Act’) in order to streamline and improve the administrative and decision-making processes involved in information access applications to governmental agencies and Ministers and ombudsman reviews.

Disclosure Logs

Section 6 of the Amending Act amends the provisions in section 28 of the FI Act relating to disclosure logs. Disclosure logs are records of access applications made to an agency or Minister which are kept by the relevant agency or Minister.  Once the Amending Act commences, in addition to any access applications for personal information, a disclosure log will not be allowed to include any information about an applicant’s business, commercial, financial or professional affairs, the publication of which would be unreasonable in the circumstances.

Obligations of Respondent to Deal with Access Application

Prior to the Amending Act, the FI Act required that if an application to access information of a governmental agency or Minister failed to meet the requirements in section 30 of the FI Act, the relevant agency or Minister was obliged to take reasonable steps to assist the applicant and provide reasonable time for compliance. The Amending Act amends the FI Act to expressly state that an agency or a Minister has no further obligation to deal with an application provided they have taken reasonable steps to assist and provided a reasonable amount of time (greater than 3 months) for the inquiring party to make the application comply with the requirements.

Clarification Requests and Suspension of Access Applications

Section 34 of the FI Act enables respondents to submit a request to clarify the scope of the application (a "clarification request"). The Amending Act stipulates a positive obligation on the part of the respondent to decide the application if the applicant responds to the clarification request within 3 months of the submission of the request. Further, section 10 of the Amending Act provides for certain circumstances to allow a respondent to suspend an application. Circumstances for suspension refer to cases where the respondent has taken all reasonable steps to contact the application regarding a clarification request and is either unable to contact the applicant or receives no response to the request. In cases of suspension, the Amending Act requires that a respondent must inform the applicant through writing that firstly, the application has been suspended and secondly, that if the suspension period exceeds 3 months, then the respondent is not obliged to deal further with the application. However the Amending Act notes that if this circumstance eventuates, the applicant is permitted to submit another access application for the same information.

Ombudsman Review and Extensions of Time

The FI Act provides that if a respondent does not request an extension of time, their failure to make a decision for information access is taken to be a refusal of access. In such cases, section 78 of the FI Act allows for the respondent to submit an application for an ombudsman review requesting to set aside the presumed decision to refuse access and provide an extended time period to decide the application. Section 11 of the Amending Act requires that if the ombudsman provided for an extension of time for the respondent to decide the access application under section 78 of the FI Act and does not decide the application within the extended period, the respondent must be provide written notice to the ombudsman.

Prior to the Amending Act, a respondent was given 20 working days to decide an access application. Further, the ombudsman was prohibited from granting an extension longer than 15 working days. The Amending Act replaces the latter provision and instead allows the ombudsman to set a discretionary yet reasonable extension of time provided that the ombudsman regards the objects of the FI Act and the importance of timely resolution. Further, section 13 of the Amending Act states that the period of 20 working days is necessarily and automatically extended in circumstances where the respondent is delayed because of:

1. Consultation with a third party or
2.  Reliance of another party’s performance such as the applicant’s response to a clarification request, fee estimate or  
3. Application by applicant to waive a fee requires respondent to decide waiver application

Alternately, in the case where it is the respondent and not the applicant who submits a request for extension, Section 15 of the Amending Act amends the FI Act to prevent the respondent from requesting an extension of time from the applicant if the extension will provide the respondent an excess of 12 months to decide the application. The Amending Act contains several other provisions outlining the administrative process and operation of these amendments.

Ombudsman Review: Alternate Resolution and Refusal to Review

The Amending Act provides for a new section 80A of the FI Act allowing the ombudsman to assist the applicant and respondent to resolve the manner through a process of informal resolution if appropriate to the circumstances. The Explanatory Memorandum states that the purpose of informal resolution is to “narrow issues in dispute and focus on achieving an effective and timely outcome”.

Further the Amending Act amends circumstances in which applications for review can be refused. Before the Amending Act, section 82(3) of FI Act provided that if an applicant produced insufficient information for review or if there was no reasonable prospect for the decision to be varied or set aside, an ombudsman was allowed to refuse to review the case. The Amending Act expands this list to include:

1. When the respondent makes a decision or the application is otherwise resolved
2. When the review is deemed an abuse of process
3. When the ombudsman reasonably attempts yet is unable to contact the applicant

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Freedom of Information Amendment Act 2019 (ACT), Bill and explanatory materials, available from TimeBase's LawOne service