Australian Capital Territory Current Acts

FREEDOM OF INFORMATION ACT 2016 - SCHEDULE 2

Schedule 2     Factors to be considered when deciding the public interest

(see s 17 (1))

2.1     Factors favouring disclosure in the public interest

The following are factors favouring disclosure in the public interest:

        (a)     disclosure of the information could reasonably be expected to do any of the following:

              (i)     promote open discussion of public affairs and enhance the government's accountability;

              (ii)     contribute to positive and informed debate on important issues or matters of public interest;

              (iii)     inform the community of the government's operations, including the policies, guidelines and codes of conduct followed by the government in its dealings with members of the community;

              (iv)     ensure effective oversight of expenditure of public funds;

              (v)     allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or public official;

              (vi)     reveal or substantiate that an agency or public official has engaged in misconduct or negligent, improper or unlawful conduct or has acted maliciously or in bad faith;

              (vii)     advance the fair treatment of individuals and other entities in accordance with the law in their dealings with the government;

              (viii)     reveal the reason for a government decision and any background or contextual information that informed the decision;

              (ix)     reveal that the information was—

    (A)     incorrect; or

    (B)     out-of-date; or

    (C)     misleading; or

    (D)     gratuitous; or

    (E)     unfairly subjective; or

    (F)     irrelevant;

              (x)     contribute to the protection of the environment;

              (xi)     reveal environmental or health risks or measures relating to public health and safety;

              (xii)     contribute to the maintenance of peace and order;

              (xiii)     contribute to the administration of justice generally, including procedural fairness;

              (xiv)     contribute to the administration of justice for a person;

              (xv)     contribute to the enforcement of criminal law;

              (xvi)     contribute to innovation and the facilitation of research;

        (b)     the information is personal information of—

              (i)     the person making the request; or

              (ii)     a child and the information is to be given to the child's parent or guardian and the disclosure of the information to the child's parent or guardian is reasonably considered to be in the best interests of the child; or

              (iii)     a deceased person and the person making the request for the information is an eligible family member of the deceased person.

2.2     Factors favouring nondisclosure in the public interest

The following are factors favouring nondisclosure in the public interest:

        (a)     disclosure of the information could reasonably be expected to do any of the following:

              (i)     prejudice the collective responsibility of Cabinet or the individual responsibility of members to the Assembly;

              (ii)     prejudice the protection of an individual's right to privacy or any other right under the Human Rights Act 2004

;

              (iii)     prejudice security, law enforcement or public safety;

              (iv)     impede the administration of justice generally, including procedural fairness;

              (v)     impede the administration of justice for a person;

              (vi)     prejudice the security or good order of a correctional centre;

              (vii)     impede the protection of the environment;

              (viii)     prejudice the economy of the Territory;

              (ix)     prejudice the flow of information to the police or another law enforcement or regulatory agency;

              (x)     prejudice intergovernmental relations;

              (xi)     prejudice trade secrets, business affairs or research of an agency or person;

              (xii)     prejudice an agency's ability to obtain confidential information;

              (xiii)     prejudice the competitive commercial activities of an agency;

              (xiv)     prejudice the conduct of considerations, investigations, audits or reviews by the ombudsman, auditor-general, integrity commission, integrity commission inspector or human rights commission;

              (xv)     prejudice the management function of an agency or the conduct of industrial relations by an agency;

              (xvi)     prejudice a deliberative process of government;

              (xvii)     prejudice the effectiveness of testing or auditing procedures;

              (xviii)     prejudice the conservation of any place or object of natural, cultural or heritage value, or reveal any information relating to Aboriginal or Torres Strait Islander traditional knowledge;

        (b)     the information—

              (i)     is personal information of a child and the disclosure of the information is reasonably considered not to be in the best interests of the child; or

              (ii)     would be privileged from production in a legal proceeding on the ground of legal professional privilege; or

              (iii)     is personal information of a deceased person and the person making the request is an eligible family member of the deceased person and the disclosure of the information could reasonably be expected to impact on the deceased person's privacy if the deceased person were alive; or

              (iv)     is information disclosure of which is prohibited by an Act of the Territory, a State or the Commonwealth; or

              (v)     is about unsubstantiated allegations of misconduct or unlawful, negligent or improper conduct and disclosure of the information could prejudice the fair treatment of an individual.

2.3     Meaning of eligible family member —sch 2

    (1)     For this schedule, "eligible family member", of a deceased person, means—

        (a)     a domestic partner of the deceased person; or

        (b)     if a domestic partner is not reasonably available—an adult child of the deceased person; or

        (c)     if a domestic partner or adult child is not reasonably available—an adult sibling of the deceased person; or

        (d)     if a person mentioned in paragraph (a), (b) or (c) is not reasonably available and the deceased person was not an Aboriginal or Torres Strait Islander person—the next nearest adult relative of the deceased person who is reasonably available; or

        (e)     if a person mentioned in paragraph (a), (b) or (c) is not reasonably available and the deceased person was an Aboriginal or Torres Strait Islander person—a person who is an appropriate person according to the tradition or custom of the Aboriginal or Torres Strait Islander community to which the deceased person belonged and who is reasonably available.

Note     Domestic partner —see the Legislation Act

, s 169 (1).

    (2)     For this section, a person is not reasonably available if a person of that description—

        (a)     does not exist; or

        (b)     cannot reasonably be contacted; or

        (c)     is unable or unwilling to act as the eligible family member of the deceased person for the purposes of this Act.