Freedom of Information Amendment (Reform) Act 2010 (51 of 2010)

Schedule 2   Publication of information

Freedom of Information Act 1982

3   Part II

Repeal the Part, substitute:

Part II Information publication scheme

Division 1 - Guide to this Part

7A Information publication scheme - guide

This Part establishes an information publication scheme for agencies.

Each agency must publish a plan showing how it proposes to implement this Part.

An agency must publish a range of information including information about what the agency does and the way it does it, as well as information dealt with or used in the course of its operations, some of which is called operational information.

In addition, an agency may publish other information held by the agency.

Information published by an agency must be kept accurate, up-to-date and complete.

An agency is not required to publish exempt matter. An agency is also not required to publish information if prohibited by another enactment.

The information (or details of how to access the information) must be published on a website. If there is a charge for accessing the information, the agency must publish details of the charge.

An agency must, in conjunction with the Information Commissioner, review the operation of the scheme in the agency every 5 years (if not earlier).

An agency must have regard to the objects of this Act, and guidelines issued by the Information Commissioner, in doing anything for the purposes of this Part.

If operational information is not published in accordance with this Part, a person must not be subjected to any prejudice as a result of not having access to the information.

Division 2 - Information to be published

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.

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);

(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.

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).

8A Information to be published - what is operational information ?

(1) An agency's operational information is information held by the agency to assist the agency to perform or exercise the agency's functions or powers in making decisions or recommendations affecting members of the public (or any particular person or entity, or class of persons or entities).

Example: The agency's rules, guidelines, practices and precedents relating to those decisions and recommendations.

(2) An agency's operational information does not include information that is available to members of the public otherwise than by being published by (or on behalf of) the agency.

B='on' FS='12' Information to be published - accuracy etc.

An agency must ensure that information published by the agency as required or permitted by this Part is accurate, up-to-date and complete.

B='on' FS='12' Information to be published - restrictions

Exempt documents

(1) An agency is not required under this Part to publish exempt matter.

Publication prohibited or restricted by other legislation

(2) If an enactment restricts or prohibits the publication of particular information, an agency is not required under this Part to publish the information otherwise than as permitted or required by the enactment.

Operation of restrictions

(3) This section applies despite section 8.

8D Information to be published - how (and to whom) information is to be published

Scope

(1) An agency must publish information that is required or permitted to be published under this Part in accordance with this section.

How (and to whom) information is to be published

(2) The agency must publish the information:

(a) to members of the public generally; and

(b) if the agency considers that it is appropriate to do so - to particular classes of persons or entities.

(3) The agency must publish the information 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.

Charges

(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 specific reproduction costs, 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 must publish details of the charge in the same way as the information is published under this section.

Note 1: 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).

Note 2: After access is given to a document under Part III (access to documents) in accordance with a request, the agency must publish the accessed document to members of the public generally in the same way as described in this section (although certain exceptions apply) (see section 11C).

8E Information to be published - Information Commissioner to assist agencies

The Information Commissioner may provide appropriate assistance to an agency in:

(a) identifying and preparing information which is required or permitted to be published under this Part; and

(b) determining how (and to whom) the information is required or permitted to be published under section 8D.

Division 3 - Review of information publication scheme

8F Review of scheme - Information Commissioner functions

The Information Commissioner has the following functions (as conferred by this Act and the Australian Information Commissioner Act 2010, but without limiting any provision of either Act):

(a) reviewing the operation in each agency of the information publication scheme established by this Part, in conjunction with the agency;

(b) investigating an agency's compliance with this Part under Division 2 of Part VIIB (Information Commissioner investigations);

(c) otherwise monitoring, investigating and reporting on the operation of the scheme.

B='on' FS='12' Review of scheme - by agencies

(1) An agency must, in conjunction with the Information Commissioner, complete a review of the operation, in the agency, of the information publication scheme established by this Part:

(a) as appropriate from time to time; and

(b) in any case - within 5 years after the last time a review under this section was completed.

(2) The first review under subsection (1) must be completed within 5 years after the day this section commences.

Note 1: This section commences on the day after the end of the period of 6 months beginning on the day on which the Australian Information Commissioner Act 2010 commences.

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).

Division 4 - Guidelines

9A Functions and powers under this Part

In performing a function, or exercising a power, under this Part, an agency must have regard to:

(a) the objects of this Act (including all the matters set out in sections 3 and 3A); and

(b) guidelines issued by the Information Commissioner for the purposes of this paragraph under section 93A.

Division 5 - Miscellaneous

10 Unpublished operational information

Scope

(1) This section applies if:

(a) part (or all) of an agency's operational information (the unpublished information ), in relation to a function or power of the agency, is not published by the agency in accordance with this Part; and

(b) a person engages in conduct relevant to the performance of the function or the exercise of the power; and

(c) at the time of engaging in that conduct:

(i) the person was not aware of the unpublished information; and

(ii) the agency had been in existence for more than 12 months.

Note: An agency's operational information is required to be published by the agency (see sections 8 and 8A).

No prejudice from lack of awareness of unpublished information

(2) The person must not be subjected to any prejudice only because of the application to that conduct of any rule, guideline or practice in the unpublished information, if the person could lawfully have avoided that prejudice had he or she been aware of the unpublished information.

B='on' FS='12' Who performs functions etc. given to agencies

(1) A function or power given to an agency under this Part may be performed or exercised, on behalf of the agency, by:

(a) the principal officer of the agency; or

(b) an officer of the agency acting within the scope of his or her authority in accordance with arrangements approved by the principal officer of the agency.

(2) The performance or exercise of a function or power under paragraph (1)(b) is subject to the regulations.